Court weighs legal shield

WASHINGTON — U.S. Supreme Court justices displayed both sympathy and skepticism Wednesday toward an attempt by two Omaha men to sue the Pottawattamie County prosecutors who put them behind bars for 25 years.

The court heard oral arguments in a closely watched case that tests the limits of a prosecutor's immunity from civil lawsuits when defendants say they've been framed. A decision, which could hold national significance, won't come until next year.

Terry Harrington and Curtis McGhee were convicted in the 1977 slaying of a retired Council Bluffs police officer. The Iowa Supreme Court overturned Harrington's conviction in 2003 because defense attorneys were never provided with evidence about another possible suspect in the crime.

After being released, the two men sued, alleging that the prosecutors had fabricated evidence. Pottawattamie County moved to stop the lawsuits on the basis that prosecutors are immune from civil liability for actions related to trying defendants.

“If a prosecutor's absolute immunity in judicial proceedings means anything, it means that a prosecutor may not be sued because a trial has ended in a conviction,” Stephen Sanders, the attorney representing the county, said during Wednesday's arguments.

Sanders was peppered with questions from the justices.

They explored the idea that a prosecutor who fabricated evidence but did not go to trial would be liable in a lawsuit, while a prosecutor who proceeded to trial with the phony evidence would be immune.

“So the law is, the more deeply you're involved in the wrong, the more likely you are to be immune? That's a strange proposition,” Justice Anthony Kennedy said.

The justices also had plenty of questions for attorney Paul Clement, who argued on behalf of Harrington and McGhee that the court should limit prosecutors' immunity for actions during pre-trial investigations.

Prosecutors should not get immunity, Clement said, if they “completed the scheme by committing further misconduct at trial.”

Those on the other side said placing limits on prosecutors' immunity would undermine important principles.

“Absolute immunity doesn't exist to protect bad apples,” said Neal Katyal, a deputy solicitor general, who appeared in support of Pottawattamie County. “It reflects a larger interest. ... If prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence.”

That argument seemed to resonate with Chief Justice John Roberts.

“We're concerned about the chilling effect on the prosecutors,” Roberts said.

Clement argued that there is little evidence that limiting pre-trial immunity would result in a flood of lawsuits.

But Roberts told Clement that the attorney doesn't truly know what effect such a ruling would have.

Harrington, who was in the courtroom Wednesday, said he listened to the arguments with mixed emotions.

What would a decision in his favor mean?

“That it's not OK to frame a man for murder in the United States and thumb your nose at the judicial system,” Harrington said. “You say you're just doing your job. A prosecutor's job is not to send innocent people to prison.”

Harrington, 50, said the case ultimately is about being able to clear his name.

Matt Wilber, the current Pottawattamie County attorney, also was present for Wednesday's arguments. A slander lawsuit is pending against Wilber in connection with comments he made asserting his belief in Harrington's guilt.

Generally, Wilber said, he works with police from the earliest stages of a case, and he's concerned that the court could send a message that prosecutors should simply stay out of the investigation phase.

“It would make you queasy to think that prosecutors should somehow get away with making things up, fabricating evidence,” he said. “On the other hand, we get complaints filed against us by folks that we've put in prison on a fairly regular basis.”

Contact the writer:

202-662-7270, joe.morton@owh.com