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At the U.S. Supreme Court today, a far different question was debated about prosecution. The justices heard arguments in a case testing whether prosecutors have total immunity from lawsuits even when they frame a person for murder.

NPR legal affairs correspondent Nina Totenberg has this story.

NINA TOTENBERG: In today's case, Iowa prosecutors, backed by the federal government and prosecutors across the country, contend that there is, quote, �no freestanding constitutional right not to be framed.� For most Americans, that's a breathtaking proposition. For Terry Harrington and Curtis McGhee, it's more than that. The men, both African-American, served 25 years of a life term before the Iowa Supreme Court overturned their convictions for murder. The state's highest court said that the key witness against the men was a known liar and perjurer and that prosecutors had withheld evidence that pointed to a different suspect in the crime.

Harrington and McGhee sued, contending that police and prosecutors had worked to frame two African-American teenagers from across the state line, while ignoring good evidence that implicated a white suspect who was the brother-in-law of the local fire chief. Representing the Iowa prosecutors, lawyer Stephen Sanders says there are good reasons for prosecutorial immunity. Otherwise, there would be a flood of lawsuits.

Mr. STEPHEN SANDERS (Lawyer): What you'll have is everyone who believes that they were wrongfully convicted will be filing lawsuits and prosecutors will do nothing all day but defend themselves against meritless litigation.

TOTENBERG: On the steps of the Supreme Court today though, Terry Harrington said he is more worried about the victims of prosecutorial misconduct.

Mr. TERRY HARRINGTON: I know what happened to me. And there should be a lot of concern about it, you know, because it's not okay to frame a man for murder in the United States.

TOTENBERG: Harrington was 17 years old when he was arrested, captain of his high school football team and being recruited for a possible scholarship at Yale. Less than two years later, convicted by an all-white jury, he went to prison for life without parole.

Mr. HARRINGTON: The very first day I went to prison, I was devastated. I cried and I cried and I cried. I couldn't sleep because I was in a place I shouldn't be. But you have to stay focused because this is what I was looking forward to: being right here, right now, today, is what kept me all those 25 years I was in prison.

TOTENBERG: Today, he sat with his daughter and girlfriend as the lawyer for the prosecutors pointed to a long line of Supreme Court decisions saying that prosecutors are immune from civil lawsuits for their actions at trial. The question posed was whether prosecutors who work side by side with police at the investigative stage of a case are also immune even though the police are not. The prosecutor's lawyer, Mr. Sanders, told the justices that it's impossible to separate the investigative phase of a case from the trial because without a conviction, there's no deprivation of liberty for the defendant and he has no legal claim that his constitutional rights were violated.

Justice Kennedy immediately pointed to a 1993 Supreme Court ruling that said prosecutors can be sued for their actions before charges are filed. Your case is just a polite way of telling us we wasted our time in that decision, that we were just spinning our wheels. Justice Sotomayor, who spent five years as a Manhattan prosecutor, also seemed unsympathetic. Why can't you separate the fabrication of evidence pre-trial, she asked, from the use of the evidence at trial?

Answer: Because it all leads to the wrongful conviction at trial and under established law, a prosecutor is free to willfully bring criminal charges based on good evidence, bad evidence or no evidence at all. He's immune regardless.

Justice Ginsburg: But if this fabrication had not occurred, there never would have been a trial. Siding with the prosecutors in court today was the U.S. government, represented by Deputy Solicitor General Neal Katyal. Like Lawyer Sanders, he asserted there's no constitutional right not to be framed.

Justice Scalia: Then how do you get the policeman who has fabricated evidence? Answer: Because the policeman is passing the fabricated evidence to an innocent prosecutor.

Justice Kennedy: What if the prosecutor knows the evidence is fabricated? Answer: He would still be immune from any lawsuit. Justice Kennedy: So, the more aggravated the wrong, the greater the immunity? Answer: You don't want prosecutors at trial to worry about being sued and to flinch, and not introduce evidence. Justice Sotomayor, incredulous: You want to send that message? Don't you want prosecutors not merely to flinch but to stop when they believe evidence is fabricated? At this point in the argument, it looked like there might be at least five votes against the prosecutors in this case.

The worm seemed to turn a bit, though, when Paul Clement, the lawyer for the wrong defendants tried to define where to draw the line on prosecutorial immunity. Leading the charge against Clement's position were Chief Justice John Roberts and Justice Samuel Alito, both recent Bush appointees. Alito, who served for seven years as a federal prosecutor, asked the most practical question: Suppose, for example, a prosecutor is investigating an insider-trading case, and the chief financial officer tells one story, then under pressure, tells another, and in exchange for a lighter sentence implicates the CEO of the company. Could the prosecutor be sued later?

Answer: What's missing in that scenario is fabricated evidence and any action by the prosecutor prior to indictment. Justice Alito theorized that the defense might view the evidence as fabricated, and that the prosecutor, before taking the case to the grand jury, wants to look the witness in the eye to see whether he's credible. Justice Breyer: I'm worried about what Justice Alito brought up. All things being equal, I think it's probably a good thing to get prosecutors involved in the questioning process early. That has kind of a check on police. Answer: If you don't have probable cause to arrest an individual, then police and prosecutors should be engaging in the truth-seeking function.

But once you have probable cause to believe this is the person who done it, then the prosecutor has a job to do, to put on a case. And at that point, he has immunity for his actions - a case of line-drawing to make the justices squirm.

Nine Totenberg, NPR News, Washington.

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