Can Prosecutors Be Sued By People They Framed?

STEVE INSKEEP, host:

The U.S. Supreme Court hears arguments today in a case testing whether prosecutors have total immunity from lawsuits, even when they frame a person for murder. In today's case, Iowa prosecutors contend there is no freestanding, constitutional right not to be framed. They are backed by the federal government and 28 states, and every major prosecutor's organization in the country.

On the other side of this case are two black men who served 25 years in prison before evidence, long hidden in police files,led to their release. NPR legal affairs correspondent Nina Totenberg reports.

(Soundbite of cheering and applause)

Mr. TERRY HARRINGTON: Oh, God is good.

NINA TOTENBERG: KETV Omaha was there when Terry Harrington walked out of prison after 25 years.

Mr. HARRINGTON: I said it before and I'll say it over and over and over again: I did not commit the murder of John Schweer.

TOTENBERG: Back in 1977, Terry Harrington, captain of his high school football team, was applying to college and being recruited for a possible scholarship at Yale. Then he was arrested for the murder of a retired police officer in neighboring Council Bluffs, Iowa, across the state line.

The principal witness against Harrington was 16-year-old Kevin Hughes, who had a criminal record and after being arrested in a stolen car first fingered two other men, one of whom turned out to have been in jail on the night of the crime.

After his first stories didn't pan out, Hughes implicated Harrington and Curtis McGhee, but his eyewitness account was riddled with errors. He initially got the site of the shooting wrong - and the weapon. He said the murder was committed with a handgun, then a 20-gauge shotgun and finally, with a 12-gauge shotgun.

He failed a polygraph test. According to lawyers for Harrington and McGhee, the Council Bluffs police and prosecutors knew all this and more, but they went ahead and indicted the two men, winning convictions from an all-white jury.

Mr. PAUL CLEMENT (Former Solicitor General): This is 1977. Council Bluffs is an all-white - essentially all-white community.

TOTENBERG: Former Bush administration Solicitor General Paul Clement represents Harrington and McGhee. He says that politics and race played a part in prosecutor David Richter's decisions, and those of his number two.

Mr. CLEMENT: He's been appointed, he has to face the voters for the first time, and he has an unsolved murder, something that is hardly standard fare in Council Bluffs, Iowa. He essentially had the perfect suspects, in a sense, if he could tag the murder to a couple of young, African-American teenagers from across the state line.

TOTENBERG: Terry Harrington couldn't believe what was happening to him.

Mr. HARRINGTON: I'm living a nightmare.

TOTENBERG: Convicted two days after his 19th birthday, he was sentenced to life in prison without parole.

Mr. HARRINGTON: When I walked in the front door and that gate closed behind me, it was so humiliating that all I could do was cry. And I cried all night.

TOTENBERG: In prison, Harrington assumed a tough alter ego he called T.J., and did everything he could to survive. After more than two decades, he struck up a friendship with the prison barber, who petitioned for the police records in Harrington's case.

According to defense lawyers, those records not only disclosed how police and prosecutors had coached Kevin Hughes until his story matched the facts, how other witnesses were coerced into lying, but the records showed that police and prosecutors had withheld evidence that pointed to another suspect.

They'd identified a white man named Charles Gates, who'd been seen with a shotgun near the scene of the crime. Gates, the brother-in-law of a Council Bluffs fire department captain, was interviewed and failed a polygraph. But prosecutors and police abandoned their interest in him in favor of Harrington, who was not even offered a polygraph. Again, lawyer Paul Clement.

Mr. CLEMENT: The bottom line is essentially, the police and the prosecutors together at some point in this case stopped looking for the real killer, the real suspect, and decided it would be far easier to get an eyewitness account that absolutely said, to a moral certainty, that two African-American youths from across the state line had committed this crime.

TOTENBERG: But even after 25 years in prison, Terry Harrington never gave up. In 2003, armed with the newly disclosed police records, he petitioned the Iowa Supreme Court, which overturned his conviction and concluded that the star witness was a quote, liar and perjurer. Since then, all the witnesses have recanted.

Curtis McGhee, Harrington's co-defendant, agreed to a plea deal in exchange for time served. Harrington refused any deal, and prosecutors dropped all charges against him. Under Iowa law, for all practical purposes, there is no way for the men to recover compensation for their 25 years of hard time. So they sued the prosecutors as well as the police under a federal civil rights law for violation of their constitutional rights.

The Council Bluffs prosecution team still contends that Harrington and McGhee are guilty, but they say that even if the men were in fact framed, that prosecutors, under established Supreme Court precedent, have total immunity from being sued.

The Supreme Court has, indeed, said that prosecutors are immune from suit for anything they do at trial. But in this case, Harrington and McGhee maintain that prior to anyone being charged, prosecutors gathered evidence alongside police, interviewed witnesses, and knew the testimony they were assembling was false.

The prosecutors counter that there is quote, no freestanding, constitutional right not to be framed. Today, the lawyer for the prosecutors, Stephen Sanders, will tell the Supreme Court that there is no way to separate evidence gathered prior to trial from the trial itself.

Mr. STEPHEN SANDERS (Lawyer): It is absolutely clear from both Supreme Court precedent and the common law that if a prosecutor files charges against someone, knowing that there's no probable cause to believe that person is guilty, that that's an absolutely immunized activity. If we want to refer to that activity as framing, then that activity is absolutely immunized.

TOTENBERG: Whatever constitutional wrongs were suffered by Harrington and McGhee, he says, they were the result of their conviction at trial, not the investigation that preceded the trial. Without the trial, he contends, Harrington and McGhee can't point to an injury they suffered.

Mr. SANDERS: Respondents are simply unable to point to any deprivation of liberty that they suffered from the fabrication itself.

TOTENBERG: Not so, says Paul Clement, the lawyer for Harrington and McGhee. The prosecutorial immunity at trial, he says, doesn't wash back and launder a frame-up at the investigative stage.

Clement notes that the Supreme Court has given immunity to prosecutors only after an indictment takes place. Before that, he contends, prosecutors have the same limited immunity that police have ? namely, they can be sued if they violate clearly established constitutional rights. And in this case, he says, by the time the indictment took place?

Mr. CLEMENT: The prosecutors were already up to their, you know, essentially their necks in this conspiracy to frame somebody for a crime they didn't commit. That violates the Constitution any way you look at it.

TOTENBERG: While the justice of this argument may be easy to grasp, Clement has an uphill climb before the Supreme Court today. There are good reasons for prosecutorial immunity. Prosecutors at every level of government worry that allowing any lawsuit, ever, would provoke a flood of suits, and that prosecutorial independence would be compromised, with D.A.s shading their decisions for fear of being sued. Now the Supreme Court will decide.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright National Public Radio.