Do You Have the Right Not To Be Framed?

JusticeThe Supreme Court hears oral argument today in Pottawattamie County v McGee, wherein they will have to decide if prosecutors have immunity from lawsuits even if they frame someone for murder.

On one side of the case being argued are Iowa prosecutors who contend “there is no freestanding right not to be framed.” They are backed by the Obama administration, 28 states and every major prosecutors organization in the country.

On the other side are two black men — Terry Harrington and Curtis McGhee — men who served 25 years in prison before evidence long hidden in police files resulted in them being freed.

[…]

The Supreme Court has indeed said that prosecutors are immune from suit for anything they do at trial. But in this case, Harrington and McGhee maintain that before anyone being charged, prosecutors gathered evidence alongside police, interviewed witnesses and knew the testimony they were assembling was false.

Hard though it might be to believe, this is actually a difficult decision. The balance between protecting diligent prosecutors from suit and protecting defendants from the bad apples is not a simple thing. The good news is that a case like this is amenable to a bright-line rule against intentional misconduct. The bad news is, the Supreme Court has shown a consistent disdain for bright-line rules for some time.

Heretical Ideas previewed this case last month.

FILED UNDER: Law and the Courts, , , , , , , , , , , , , , , , , , , , , ,
Dodd Harris
About Dodd Harris
Dodd, who used to run a blog named ipse dixit, is an attorney, a veteran of the United States Navy, and a fairly good poker player. He contributed over 650 pieces to OTB between May 2007 and September 2013. Follow him on Twitter @Amuk3.

Comments

  1. PD Shaw says:

    Nice write-up at Heretical Ideas. I am not as supportive of Section 1983 actions as the writer, but it seems to me that a prosecutor who knowingly prosecutes a man for a crime he didn’t commit is exactly the type of conduct intended to be remedied by that law. That would be true regardless of whether it is during the trial or prior to the arrest. Prosecutors clearly have public duties beyond being a zealous advocate.

  2. Alex Knapp says:

    PD,

    Prosecutors clearly have public duties beyond being a zealous advocate.

    Indeed. In fact, I’d go so far as to argue that prosecutors should not be zealous advocates at all, and there’s quite a few legal ethicists who agree with that.

  3. Steve Verdon says:

    On one side of the case being argued are Iowa prosecutors who contend “there is no freestanding right not to be framed.” They are backed by the Obama administration, 28 states and every major prosecutors organization in the country.–emphasis added

    Ha ha ha ha ha.

    Change we can believe in.

    Hard though it might be to believe, this is actually a difficult decision. The balance between protecting diligent prosecutors from suit and protecting defendants from the bad apples is not a simple thing.

    Might help if the “bad apples” were gone after a bit more than they currently are. This case exemplifies the problem and further undermines belief in our judicial system.

  4. Diane C. Russell says:

    So the prosecutors believe that their victims have no Constitutional right not to be framed.

    Has anyone asked them which provision of the Constitution authorizes the government to frame innocent people?

  5. Mithras says:

    The principle of governmental immunity should end with intentionally wrongful acts. Framing someone is at least a violation of due process and the right to a fair trial. Also, why aren’t these prosecutors being charged criminally for unlawful imprisonment? If a private citizen detained someone without cause, that’s exactly what they’d be charged with.

  6. The only thing “hard” about this case is understanding why Curtis and McGhee had to sue to begin with.

    Why isn’t David Richter in jail?

  7. PD Shaw says:

    I believe in most states, one can sue for wrongful conviction. According to the above link, Iowa doesn’t have such a law.

  8. Anderson says:

    Dodd, “intentional” looks like a bright line, but since not everyone’s dumb enough to leave e-mails saying “let’s frame these guys,” intent has to be proved circumstantially, which involves a good bit of investigation.

    The prudential ground is that we don’t want every convict suing his prosecutors.

    I suspect the best we can hope for is some kinda “shocks the conscience” test that lets the worst cases be punished.

  9. Dodd says:

    We punish intent crimes all the time, usually without direct proof. The fact that it’s hard satisfies the requirement that the bar be high. Yet another balancing test would be a travesty.

  10. Pug says:

    Here’s just a wild guess. Scalia, Thomas, Roberts and Alito come down on the side of the prosecution.

    Wanna bet?

  11. Dodd says:

    Wanna bet?

    I’ll take that bet. I am pretty sure one of the four won’t (though Breyer might). Stakes?

  12. I bet Sotamayor comes down on the side of the prosecution.

  13. Franklin says:

    Ha ha ha ha ha.

    Change we can believe in.

    Wow, feeling snarky today? I don’t actually remember anything during the campaign about overturning prosecution immunity.