Blowin' in the Wind

They got away with it again. Sort of.

I'm talking prosecutors who cheat. You know, the ones who intentionally fabricate evidence in order to convict a couple of innocent guys of murder, a couple of guys who spend 26 years (that's 26 years! 26!) in prison before they manage to prove that they're innocent and were railroaded by the prosecutor. That's what happened to Terry Harrington and Curtis McGhee in Pottwattamie County, Iowa back in 1978.

So they sued. The problem is that the Supreme Court held, back in 1976, in Imbler v. Pachtman that prosecutors are absolutely immune from money damages for anything they do in their roles as prosecutors. What's that you say? That's a stupid rule? Yup.

But, you see, the Court figured that you didn't want prosecutors to be busy restraining their proper conduct by worrying about whether someone would think it misconduct. Huh? You still think it's stupid? Join the club. But it's the law.

Anyhow, they sued. The case, Pottawattamie County v. McGhee, made it to the Supreme Court where it was argued in November. Mike Cernovich at Crime & Federalism, rightly called it "the most interesting Section 1983 case this Term." (I've talked about the case before.)

Roughly, the prosecutors argued that if prosecutors become nervous about the consequences of making up evidence, there's no stopping point and they'll be afraid to prosecute anyone. We don't want to make them to flinch when making up evidence, because we want them to be more than willing to present evidence that isn't made up without flinching. Like I say, stupid.

Justice Sotomayor saw through it. During oral argument, she asked a lawyer from the Department of Justice who'd made that argument,

Do you really want to send a message ... that they should not merely flinch but stop if they have reason to believe that evidence is fabricated?

You'd think this would be an easy call. Don't even have to adjust the general rule. All you have to say is that when prosecutors fabricate evidence, they aren't acting as prosecutors, they're acting as criminals: suborning perjury. But if you read the transcript of the argument, you'll see that nobody actually said that. And you'll see that it's far from clear how the Court would rule.

I mean, everyone agreed prosecutors shouldn't fabricate evidence. But whether they should be held liable for doing it? Wow, that seemed like a toughie.

If there were some other remedy for the misconduct, some other punishment to deter that sort of thing, maybe it wouldn't matter so much. But as Harrington and McGhee's brief makes clear, there is no other remedy because there are no consequences for prosecutors who cheat:

Petitioners’ amici describe a host of other remedies to punish prosecutors for misconduct. See, e.g., Nat’l Ass’n of AUSAs Br. 7-16; see also Imbler, 424 U.S. at 428-29. The most notable thing about amici’s lengthy catalog of supposed remedies, however, is that petitioners have not faced any of them. The highest court in the State of Iowa found that petitioners had violated the Constitution by suppressing exculpatory evidence. Harrington v. State, 659 N.W.2d 509, 521-25 (Iowa 2003). What consequences befell the prosecutors for that unconstitutional action? Petitioners did not face so much as a state-bar investigation, and they remain members in good standing of the Iowa bar in private practice in Council Bluffs. “Remedies” that go unused when serious, documented prosecutorial misconduct comes to light are little better, and perhaps worse, than no remedies at all. Unfortunately, the lack of meaningful response is typical. See Wayne D. Garris, Jr., Model Rule of Professional Conduct 3.8: The ABA Takes a Stand Against Wrongful Convictions, 22 GEO. J. LEGAL ETHICS 829, 842-43 (2009).[] The reality is that bad prosecutors are deterred by, and punished by, civil-rights suits like this one, or not at all.[]

(Footnotes omitted.)

So there it all stood. Until everyone blinked.

The case settled. Harrington & McGhee get to split twelve million of Pottawattamie County's dollars and the prosecutors of America get to keep making up evidence. The press release crows about a victory. So the Supremes won't rule.

You can never blame parties to a lawsuit for settling rather than allowing the courts to make up new rules. And frankly, as both Norm Pattis and Sarah recognize, it may be that we're all better off not knowing that the Supremes don't really think fabricating evidence isn't part of acting like a prosecutor. Then again, we might have won. Maybe there really is a limit.

But maybe not. Maybe it really is what the particular cheating prosecutors and the Department of Justice and the various associations of prosecuting attorneys and numerous state and local governments said while trying not to admit they were saying it:

Fabricating evidence and conspiring to convict innocent people of murder is part of what prosecutors do. It's part of the job description.

I've written a lot about Maricopa County here. I've carried on high about the county sheriff and the county prosecutor who start investigations and bring criminal charges against anyone who says a bad word about them. I've said it's a constitutional crisis there, that the rule of law is gravely at risk.

Maricopa is a special place because it's ground zero for the problem. But it's also no more than an example. Today it's Sheriff Joe and Andy Thomas. In 1978, it was the prosecutor in Pottawattamie County. Tomorrow?

As Dylan wondered back in the day:

How many times can a man turn his head
And pretend that he just doesn't see?

The answer's still in the wind.