Wrongful Conviction And Absolute Immunity

Prosecutorial Immunity

Prosecutorial Immunity is a hybrid of judicial immunity, for prosecutors act in executive and judicial roles. A large part of this arises from the long discredited notion of prosecutorial discretion. Moreover, the 'Separation of Powers' doctrine prohibits one branch of government, at any level, from infringing or exercising the powers belonging to another branch of government. Discretion does require each of us to find the truth without prejudice.

In 1978, Curtis McGhee and Terry Harrington were convicted of murdering a retired police officer in Pottawattamie County, Iowa and sentenced to life in prison.  Twentyfive years later, the release of new files in the cases revealed that prosecutors had fabricated the testimony of a lead witness at their trials and failed to disclose evidence about an alternative suspect to the defense.  The Iowa Supreme Court vacated Harrington's sentence, and McGhee pleaded guilty to a lesser charge in exchange for time served.  Both prisoners were freed.

After their release, McGhee and Harrington sued the prosecutors and the county officers under 42 U.S.C. § 1983.  The district court ruled that the prosecutors could be held liable for violating McGhee and Harrington's substantive due process rights, and the Eighth Circuit affirmed that conclusion.

In 1976, the Supreme Court held in Imbler v. Pachtman that prosecutors have absolute immunity from liability for their official actions during trial.  That conclusion rested largely on policy reasons: the Court emphasized that prosecutors must be able to pursue criminals with “courage and independence,” and without worrying about the threat of lawsuits.  Thus, the parties agree that prosecutors such as petitioners enjoy immunity when they knowingly introduce false testimony during trial.  However, they disagree about whether Imbler's rule extends to actions that are taken before trial but are directly connected to the trial.

In their brief on the merits, the prosecutors characterize the substantive due process claim raised by McGhee and Harrington as a “right not to be framed” - a right, they emphasize, that the Court has never recognized.  In their view, any violation of a constitutional right requires a deprivation of liberty, not merely an intent to deprive someone of liberty.  Therefore, a prosecutor's fabrication of testimony cannot violate the Constitution until the perjury is presented at trial and is instrumental in securing a conviction.

The prosecutors next argue that they have absolute immunity for any conduct directly connected to a trial.  Liability under § 1983, they contend, is determined using the “functional test” outlined by the Court in 1993 in Buckley v. Fitzsimmons, pursuant to which a prosecutor is immune for acts that are “intimately associated with the judicial phase of the criminal process.”  Because investigations and evidence preparation yield the materials presented during trial, they are “intimately associated” with the judicial phase, and McGhee and Harrington lack a cause of action under § 1983.

The prosecutors also contend that the same policy rationales underlying the Imbler rule for trial conduct apply fully at the pretrial stage.  Even honest prosecutors are less likely to participate fully in investigations if ...