In one, Iowa prosecutors are accused of fabricating evidence that sent two innocent men to life imprisonment for murder. In the other, an Alabama prisoner attributed his death sentence to an appointed defense lawyer’s failure to present evidence at the sentencing phase of his trial.
In the Iowa case, Curtis W. McGhee Jr. and Terry J. Harrington, having spent 25 years in prison, were freed after the Iowa Supreme Court’s determination in 2003 that the main witness against them was “a liar and a perjurer.”
The two men then sued Joseph Hrvol and David Richter, prosecutors in Pottawattamie County, accusing them of coaching and coercing the witness into providing false testimony. For purposes of their appeal to the Supreme Court from a lower court ruling allowing the suit to go forward, the prosecutors accepted the truth of the accusations against them and argued instead that they were entitled to complete immunity from being sued.
It is well established that prosecutors cannot be sued for anything they do during trial, including knowingly submitting false evidence. The question in the Iowa case, Pottawattamie County v. McGhee, No. 08-1065, is whether that immunity extends to prosecutors’ pretrial conduct.
Stephen S. Sanders, a lawyer for the Iowa prosecutors, acknowledged that police officers can be sued for fabricating evidence later used to obtain a conviction. So too, Mr. Sanders said, can prosecutors who had nothing to do with presenting the fabricated evidence at trial. But trial prosecutors, he said, should enjoy complete immunity for anything they do before or during trial.
Justice Anthony M. Kennedy, who is often the swing vote in cases concerning the scope of the Constitution’s due process clause, appeared troubled by the distinction.
“So the law is, the more deeply you’re involved in the wrong, the more likely you are to be immune?” Justice Kennedy said. “That’s a strange proposition.”
Neal K. Katyal, a deputy solicitor general, argued for the federal government in support of the state prosecutors. Mr. Katyal said that even in the case of police officers, they could be sued only if they had duped prosecutors into using fake evidence. There is no constitutional violation, he said, if the police and the prosecution are acting in concert, because the prosecutors’ absolute immunity would apply to the police as well.
“Again,” Justice Kennedy said, “the more aggravated the tort, the greater the immunity.”
Justices Sonia Sotomayor and Samuel A. Alito Jr., both former prosecutors, expressed differing concerns about the effect that various possible rulings would have on future prosecutions.
Justice Sotomayor noted that “neither of the two prosecutors in this case were sanctioned in any way for their conduct,” and said studies showed that professional discipline or other punishment for prosecutorial misconduct was rare. She seemed to suggest that civil lawsuits had a role to play in addressing such misconduct.
Justice Alito said allowing suits for prosecutors’ pretrial activities would undermine their trial immunity, because it is easy for plaintiffs to allege wrongdoing. He added that prosecutors often played a valuable role in assisting the police during investigations, one that might be chilled if prosecutors feared potential liability.
Paul D. Clement, solicitor general in the Bush administration, represented the freed prisoners. “I can’t think of a single reason,” Mr. Clement said, “why the only reason a prosecutor would get absolute immunity is if they not only participated in the pretrial misconduct but completed the scheme by committing further misconduct at trial.”
The Alabama case, Wood v. Allen, No. 08-9156, arose from the appointment of a lawyer who was less than a year out of law school to help defend Holly Wood, convicted in 1994 of murdering his former girlfriend. The lawyer, Kenneth B. Trotter, failed to pursue or present evidence that Mr. Wood was mentally retarded, though he had a competency report in hand that said as much.
Wednesday’s argument in the case was almost entirely concerned with a 1996 law that limits the claims federal courts can hear from death row inmates.
“It is just repetitive, and it gets people mixed up,” Justice Stephen G. Breyer said of two seemingly duplicative provisions of the law, the Antiterrorism and Effective Death Penalty Act.
Justice Kennedy was also frustrated. “So I have a choice of something that is counterintuitive or superfluous,” he said, “and I don’t know which one to take.”
Various solutions were proposed about how to harmonize the two provisions, but they seemed only to complicate matters further.
Adopting one of those solutions, Justice Breyer said, would lead to confusion and litigation in equal measures. “There will only be four professors in the country who understand which is which,” he said, “and they will each say different things.”
It was not clear, though, that any answer to the question of how to read the dueling provisions would be of help to Mr. Wood.
Some justices said his best argument, under yet a third provision of the law, was not properly before the court. Others said Mr. Wood would have been no better off had his defense worked harder.
Justice Antonin Scalia said the defense had made a smart choice in deciding not to present evidence concerning Mr. Wood’s apparent mental retardation.
“There was nothing here that was going to help them,” Justice Scalia
said, “and there might be stuff that would hurt them.”