Practical Law Blog

Can you sue prosecutors for framing you?



Today, Pottawattamie County, Iowa, asks the Supreme Court of the United States to reverse an 8th Circuit Court of Appeals ruling which states “immunity does not extend to the actions of a County Attorney who violates a person’s substantive due process rights by obtaining, manufacturing, coercing and fabricating evidence before filing formal charges, because this is not ‘a distinctly prosecutorial function.’”

Some background: In 1978, the Pottawattamie County Attorney convicted Curtis McGhee and Terry Harrington of murdering a retired police officer. The trial court sentenced them to life in prison.

Fast-forward 20 years. A prison employee befriends Harrington and his family and starts an independent investigation in to their claims of innocence. She discovers that the County Attorney, before trial, participated in the criminal investigation. McGhee and Harrington accuse the County Attorney of  using perjured and fabricated testimony, and withholding evidence to convict them.

25 years after their convictions, The Iowa Supreme Court agrees and overturns McGhee’s and Harrington’s trial. Iowa drops charges against Harrington and McGhee pleads to a charge with no additional punishment.

With their freedom, McGhee and Harrington sue Pottawattamie County for railroading them; but there’s a catch. Prosecutors enjoy absolute immunity for their actions during trial. What does that mean? Prosecutors can put someone on the stand to testify against you, someone they know is lying, and you cannot sue them. They are immune.

McGhee and Harrington’s suit takes a new tack. They claim that because the County Attorney participated in the criminal investigation, before trial, that the prosecution only enjoys limited immunity—in this case, no immunity. The 8th Circuit Court of Appeals agreed with them.

McGhee and Harrington make a compelling argument. They argue that prosecutorial misconduct that is “so ill-motivated as to shock the conscience” violates due process even if it occurs before trial. They also argue that giving prosecutors absolute immunity at every stage in a criminal investigation encourages malicious prosecutions. The facts of this case are particularly heart-wrenching. Here, prosecutors didn’t chose to believe one person over another, or fail to disclose important evidence; here, the prosecutors fabricated evidence. To a defense attorney, nothing is scarier.

The Supreme Court must agree with the 8th Circuit and find that in this country, we the people enjoy the right to be free from this prosecutorial misconduct, to be free from railroading.


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