What Ever Happened to the Search for Truth?

There was argument yesterday (Thursday) in the Supreme Court in Pottawattamie County v. McGhee, in which two men who have served 25 years of life sentences are suing two prosecutors in federal court for violating their constitutional rights by coaching  and coercing witnesses to commit perjury at their trial for murder.  The Iowa Supreme Court freed the (now) plaintiffs after finding that the main witness against them was “a liar  and a perjurer.”

Police officers have qualified (not absolute) immunity for fabricating evidence that is later used at trial.  Also, the lawyer for the prosecutors-defendants said that prosecutors who fabricate evidence, but who don’t present it at trial, can be sued.  But he argued that prosecutors who participate in the trial should have complete immunity for both suborning and presenting perjury.

Neal Katyal, a U.S. deputy SG, argued for the U.S. (!) that there is no constitutional right to sue either the police or the prosecutors if they have acted in concert to create and present the perjury.

Justice Kennedy commented that it’s a strange proposition that the more aggravated the tort, the greater the immunity.

Justice Alito expressed concern that liability in a case like this might chill prosecutors in assisting police in investigating cases.

Justice Sotomayor observed that prosecutors are rarely disciplined for misconduct, suggesting that potential civil liability might help to curb such misconduct.

It looks like 5-4, one way or the other.

Comments

[Judith]

Although it's been 25 years, I hope that if any of those prosecutors is still alive they have been disbarred.

[john steele]

Monroe, great post. On a related topic, I read that the Pennsylvania judges who pocketed cash (on a per capita basis, no less!) for sending teens to jail may enjoy absolute immunity. A very hard result to justify or accept.

[Joe]

I've heard about this case. Fabricating evidence should not be tolerated. Ever. Doesn't our system of justice presume we are INNOCENT until someone else proves us guilty?

[Monroe Freedman]

I infer from Sotomayor's comment that the prosecutors have never been disciplined, which is, of course, typical.
It's possible, though, because of the considerable publicity, that this will be one of the rare cases in which there is discipline (as happened in Nifong's case). My bet, though, is that no discipline will follow.
I should add that the post is based on Adam Liptak's report in the NY Times on 11/5.

[Alice Woolley]

Similar issues here. Yesterday the Supreme Court of Canada overturned a trial/appellate court decision imposing civil liability on a Crown prosecutor for malicious prosecution. The Court held that to establish liability the plaintiff must demonstrate an absence of reasonable and probable grounds, objectively speaking (that criminal liability could be imposed) and, as well, that the prosecutor was actively malicious. It is not enough to show that the prosecutor had no subjective belief in guilt. It is not enough to show that the prosecutor proceeded because of "incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence or even gross negligence". The plaintiff must in fact demonstrate that the defendant had some additional improper purpose, one "inconsistent with his or her role as 'minister of justice'". That would, presumably, be evidence of corruption or something similar. While on the facts of this case (Miazga v. Kvello Estate 2009 SCC 51) it seems like the trial judge's decision was problematic, the decision of the Supreme Court strikes me as most unfortunate. Particularly since, in an earlier decision, the Supreme Court said that it is only in like circumstances that a law society can discipline a prosecutor for how s/he exercises her discretion.

Particularly troubling to me is the fact that while the Court offers reasons similar to Justice Alito - the importance of Crown independence - it does not explain why that objective can only be fulfilled by granting something close to absolute immunity to prosecutors. It seems to me that independence is a value (as is assisting police in investigating cases) but why that value can only be achieved in the absence of any sort of accountability requires some further explanation.

I hope that the 5-4 result in your Court is more accountability orientated.

[Monroe Freedman]

Ah, well. At least if a criminal defense lawyer suborns perjury, disbarment is a certainty, and probably contempt of court as well. So the search for truth is still paramount -- or almost, sometimes.