Supreme Court Considers Prosecutorial Immunity
By Joe Palazzolo | November 4, 2009 9:26 pm
Paul Clement (King & Spalding)

Paul Clement (King & Spalding)

Supreme Court justices seemed to struggle on Wednesday with the question of when, if ever, prosecutors should be held personally liable for their officials acts, reports The National Law Journal’s Tony Mauro.

Curtis McGhee and Terry Harrington, who served 25 years in prison, sued prosecutors for violating their civil rights by allegedly coercing and coaching witnesses to falsely accuse them of killing a retired Iowa policeman. The suit, Pottawattamie County v. McGhee and Harrington, targets County Attorney David Richter and an Assistant County Attorney Joseph Hrvol.

Police who manipulate evidence have qualified immunity, but prosecutors have absolute immunity. The issue before the court is whether prosecutors performing police-like duties before trial, and then either participate or do not participate at trial, enjoy protection from liability.

Mauro reports:

Several justices appeared disturbed by the facts of the case and unwilling to let prosecutors completely off the hook. But the long tradition of strong prosecutorial immunity also seemed to tug at the Court.

“We’re worried about the chilling effect on the prosecutors,” said Chief Justice John Roberts Jr. at one point.

The former Iowa inmates were represented by former Solicitor General Paul Clement, who made 49 appearances before the court as the government’s chief advocate during the Bush administration. Clement, now at King & Spalding, took the case pro bono, according to Mauro.

Clement said even prosecutorial immunity has its limits.

“The police officer that engages in this misconduct has committed a grave, grave constitutional violation and ought to be liable,” Clement told the Court. “I think the prosecutor who engages in the pretrial misconduct and then doesn’t participate in the trial is just as liable as that police officer, and I can’t think of a single reason why the only reason a prosecutor would get absolute immunity is if they not only participated in the pretrial misconduct but completed the scheme by committing further misconduct at trial.”

But where to draw the line? Lawyers arguing for the county — Deputy U.S. Solicitor General Neal Katyal and Stephen Sanders, an associate at Mayer Brown – said any erosion of immunity would be seized on by every disgruntled defendant and hinder prosecutors in the performance of their official duties.

“If prosecutors have to worry at trial that every act they undertake will somehow open the door to liability, then they will flinch in the performance of their duties and not introduce that evidence,” Katyal said.

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One Comment

  1. FreeOrSerf says:

    So you mean to tell me that a prosecutor is allowed to lie to the court? That doesn’t sound fair to me. Then you wonder why people don’t respect the system. I’ll tell you why- its because your a bunch of WEASELS!
    I don’t care if it is in the course of your duties as a prosecutor or not and I hope it does make you flinch. Prosecutors have no natural right to lie!
    What the hell is the world coming to??