Monday, October 19, 2009

Pottawatamie County & Nifong

In 1978, in Iowa’s Pottawattamie County, a retired police officer working as a security guard was murdered. Police and prosecutorial attention rapidly focused on Curtis McGhee and Terry Harrington. The two suspects were tried, convicted, and imprisoned for more than two decades.

But, it turns out, massive misconduct occurred in the case. The prosecutors never informed defense lawyers that police had another suspect in the killing. Nor did they reveal that they seem to have coached a key witness in the case to give fabricated evidence against McGhee and Harrington. When this information surfaced, in 2002, the Iowa Supreme Court vacated one conviction, and the other defendant accepted a plea bargain allowing him to go free immediately. Both McGhee and Harrington then filed suit against the police department and against the two prosecutors, Joseph Hrvol and David Richter, who had manufactured the evidence against them.

The prosecutors sought to have the lawsuit dismissed, claiming that they possessed absolute immunity for their acts. But lower courts ruled against them, and their case now goes before the Supreme Court.

The case has attracted a number of amicus briefs. Among the most persuasive: that from the libertarian Cato Institute, the ACLU, and the National Association of Criminal Defense Attorneys. Filing amicus briefs on behalf of the ethically challenged prosecutors were the Justice Department and the National District Attorneys Association. Both briefs contend that abandoning absolute civil immunity for prosecutorial behavior would make prosecutors so afraid of being sued that they won’t be able to do their jobs.

The Justice Department argues, “If the allegations here are true, petitioners engaged in prosecutorial misconduct of an execrable sort, involving a complete breach of the public trust. But absolute immunity reflects a policy judgment that such conduct is properly addressed not through civil liability, but through a host of other deterrents and punishments, including judicial oversight of criminal trials, and criminal and professional disciplinary proceedings against prosecutors. The Court has long held that, given these alternative tools, allowing criminal defendants to bring civil suits against prosecutors will produce few additional benefits and could cause serious harm.” Or, in the words of the NDAA brief, “The inevitable consequence of broader civil liability will be the chilling of the essential exercise of wholly constitutional efforts to prosecute criminal defendants.” The greater good dictates absolute civil immunity for prosecutors.

In her brief, Solicitor General Elena Kagan also argues for reversal of the lower-court rulings on the grounds that the Supreme Court “has never said that a prosecutor can be liable for actions at trial, simply because they relate back to earlier conduct at the investigatory stage (i.e., before probable cause is established). To do so would transform the absolute immunity of Imbler [which provides absolute immunity to prosecutors for activities “intimately associated with the judicial phase of the criminal process”] into little more than a pleading rule; plaintiffs barred under Imbler would simply draft their complaint to refer to the prosecutor's investigation and preparation of the case instead of his activity at trial.”

The DOJ/DNAA argument is quite breathtaking. As Radley Balko has argued, the Pottawattamie side of the case contends “that prosecutorial immunity gives government officials the right to coerce witnesses to lie, withhold evidence pointing to a suspect's innocence, and work with police to manufacture false evidence of guilt, then use that evidence to win false convictions that send two men to prison for 25 years.”

The Justice department and the NDAA make a second argument: namely, that other options—such as disbarment or even, in extreme instances, criminal prosecution—exist to sanction ethically challenged prosecutors. Among the examples favorably cited in the NDAA brief: the removal of Mike Nifong as Durham County District Attorney.

At first blush, and even though his termination from the legal profession was celebrated in one of these filings, the DOJ and NDAA briefs might seem like good news for Nifong, as he desperately seeks to avoid civil liability for his misconduct. In fact, however, both briefs—especially that of the Justice Department—confirm that Nifong’s behavior in the lacrosse case fell outside the bounds of any conceivable definition of appropriate prosecutorial conduct. And if even these extremely aggressive defenses of prosecutorial immunity don’t cover Nifong’s behavior, the disgraced ex-DA would seem to be in trouble.

“Prosecutors,” according to the Justice Department, “may not be held liable for fabricating evidence they introduce at trial, even though police officers who fabricate evidence may be held liable under Section 1983.” In fact, “even an unconscionable act of fabrication does not transform a prosecutor's acts at trial into a source of civil liability.”

But Nifong, of course, was supervising the police investigation before any finding of probable cause (the grand jury indictment based on admittedly false testimony from ex-Sgt. Mark Gottlieb) had occurred. In a highly unusual move, he assumed personal command of the police investigation ten days after Crystal Mangum made her initial false charges. No representative of the Durham Police Department or city government has ever provided an explanation as to why the police, in violation of custom and procedures, ceded control of their investigation to the prosecutor on March 24, 2006.

The Justice Department, in a passage that could have been tailored to describe Nifong’s behavior, conceded that “prosecutors may remain liable for any number of investigation-stage activities, as to which they enjoy only qualified immunity—for example, conducting searches and seizures that violate the Fourth Amendment.” In Nifong’s case, such behavior would be his conspiring with lab director Brian Meehan to produce an incomplete and misleading report; or ordering the police to run a third lineup, which violated their procedures and was confined to the suspects in the case.

That said, according to the Justice Department, “liability for procurement is not predicated on the simple act of fabricating the evidence; if there were no subsequent use of the evidence, there would be no liability.” But Nifong did use the fabricated evidence: the fabricated item (the lineup) provided the only specific material used against the three people that Nifong targeted.

One final item from the Justice Department brief that’s damning to Nifong. The brief maintains, “‘On facts like those alleged here, a person who bears the title prosecutor, but who ‘perform[ed] [only] the investigative functions normally performed by a detective or police officer,’ Buckley, 509 U.S. at 273, would be liable. The exemption from liability in this case, although absolute, applies only to a discrete set of individuals for a discrete set of activities.”

The passage unveils a bizarre DOJ claim that prosecutors must have absolute immunity as soon as they introduce their manufactured or improperly obtained evidence at trial. If, however, someone else handles the case, the initial prosecutor would be civilly liable. As no trial ever occurred in the lacrosse case, Nifong would seem to be additionally vulnerable.

In short, for Nifong, even superficially good news turns out to be bad.


William L. Anderson said...

This is an excellent post, and we see that the government now makes an extraordinary claim: It always is right, even when it acts by lying, brutality, and deceit that would place those outside government employ in prison.

Second, we see that despite a "regime change" in Washington, there really is no change at all, at least in the situation with prosecutorial misconduct. We expected this kind of behavior out of the Bush administration; the Obama administration promised that it would not do these things, yet here we have the current administration advocating EXACTLY what the Bush administration would have demanded.

This is not a partisan slap at Obama. It is just an observation that whoever is in power does not want anything that would challenge its absolute power over the lives of innocent people.

Should anyone be shocked that the Department of Justice operates by lies and brutality? As I have written before, when prosecutors are absolutely invulnerable, then the "profession" will attract the people who are most dishonest, as they see this as an opportunity to engage in the worst of their legal fantasies: to take legal behavior and criminalize it.

f1guyus said...

Sounds like "Big Rule, Little Rule" too me. The big rule being "Be an honest person"
Failing that you get all the little rules, complete with loopholes, room for "Interpretation" and opportunities to throw lots of sand in the wheels.
BTW what's going on with the lawsuits?

Anonymous said...

Why would we expect the Bush administration to have prosecutorial lawlessness? What are examples of this? Would the Scooter Libby trial count as being for or against the Bush administration?
Great post on the strange nature of freedom of prosecutors. Ethics really means a lot to bulwark us from evil.

Anonymous said...

To the 8:05
Yes, those you consider to be social deviants put on the garb of police, prosecutors, politicians, priests/ministers and college professors.
So What are we to do about it?

skwilli said...

Prosecutors Rules to Live By:

Rule No. 1- Government employees are always correct and munificent.

Rule No. 2- When demonstrably incorrect and vindictive, refer back to rule no. 1.

Move along, nothing to see here.

Jim in San Diego said...

Many judges are former prosecutors. They tend to identify with the problems of prosecutors, and not the problems of falsely convicted citizens.

So, the "absolute immunity" argument typically gets more than a fair hearing.

There is, however, a way to avoid the problem in the usual civil case that a case may go forward based solely on the allegations of the pleadings. It is this procedure which encourages harassing lawsuits. All you have to do is make an allegation, and you can proceed with your civil case.

We require judicial supervision of certain types of securities cases. In those cases, a plaintiff cannot proceed simply on the bare allegations of the pleadings. A court must first evaluate the merits of the claims.

In principal, we could adopt some version of judicial supervision to protect against harassing complaints by non-victims.

The idea of absolute immunity to anyone for intentionally depriving a person of their liberty or even their life is just too hard to swallow.

Jim Peterson

Anonymous said...

I don't see how this affects the suits against Nifong that much no matter how this Iowa case turns out. Nifong did so much that was outside the scope of a prosecuting attorney that he won't be covered by absolute immunity for those actions.

Anonymous said...

I'm not taking sides in this case, as I know little about the facts. Excuse me. I should say I don't know enough about the facts. I am sure that others here with far less knowledge of the facts will feel empowered to give amplification to their moral certainties.

I'm just writing to comment as a former court clerk (the person whose daily job it is to read briefs from all parties in cases) on the amici brief cited by KC in his post.

The best thing about amici briefs, from a clerk's point of view, is that one doesn't have to read them. In reading the brief cited, I felt that, about halfway through, most clerks would only "skim" the rest. The reason? Because an amici brief is suppose to help the court in its deliberations, not raise new and irrelevant questions.

(Unsatisfied with the half-paragraph which the amici brief devotes to the facts of the case, I've just read the facts in one of the other briefs. It appears that the Respondents were indeed guilty of the murder, but their convictions were overturned due to prosecutorial misconduct. I just don't want to see the word "exonerated" attached to their names. Nor is this, as another commenter suggested, a case of "criminalizing legal conduct". It is more of a case of, as one of Pres. Obama's friends put it, "Guilty as hell, free as a bird.")

Anyway, the second thing that irked me, after the truncated and misleading half-paragraph of facts, is also in the "Summary of the Argument", on pages 5 and 6. There it is found:

"That the prosecutors in this case also were the ones to utilize such evidence at trial cannot be related backwards to retroactively immunize their earlier misconduct. This fact at most relates to the viability of Respondents' constitutional claim seeking to hold Petitions liable for their investigative misconduct."

When I read "[t]his fact" in the second sentence, I thought, "What fact?" and reread the paragraph. It seems that amici think the preceding sentence was a statement of fact:

"That the prosecutors in this case also were the ones to utilize such evidence at trial cannot be related backwards to retroactively immunize their earlier misconduct."

That doesn't look like a "fact" to me. It looks like an argument. Even worse, because amici cited no authority in support of this assertion, it looks like an unsupported argument. Far from a "fact".

Then, later in the brief, the amici made a reference to "the due process clause of the Constitution", as though there is only one. It should have cited which of the due processes clauses it meant.

At that point, with new questions about asserted "facts" and unidentified due process clauses clouding my head, skimming began.


Anonymous said...

Is Kagan a Communist?

One Spook said...

RRH @ 4:40 PM writes:

"I am sure that others here with far less knowledge of the facts will feel empowered to give amplification to their moral certainties."

And the anon at 1:34 PM writes: "To the 8:05
Yes, those you consider to be social deviants put on the garb of police, prosecutors, politicians, priests/ministers and college professors."
[my emphasis]

Amen to those comments, and so, to the 8:05, I say:

I find it interesting that a college professor would react to the misdeeds of prosecutors and advocate the elimination of their absolute immunity while simultaneously viewing misdeeds of college professors and yet NOT calling for the elimination of say, tenure or "academic freedom", which are essentially types of absolute immunity for college professors.

As I've written in the past, I happen to agree with absolute immunity for prosecutors, AND tenure/academic freedom for professors.

One Spook

Mary said...

I am reminded of the slip-twitch-step to the left-swivel to the right avoidance behaviors of priests and their bishops when forced to face questions from plaintiff attorneys in sexual abuse cases. "Slippery slimy" men diving into loopholes.....was Nifong ever a priest? His abuse of the Duke Three and his hiding behind the petticoats of prosecutor "protection" is no different than the scumbags who raped six year old altar boys and ran to the Vatican for shelter from the storm.

Panacea said...

Interesting that the screening of Duke Professor Tim Tyson's book is going to be at the Hayti Center in Durham.

Wouldn't you love to see KC ask some serious questions of Jeb Stuart about the character of his collaborator?

Debrah said...

Who is this guy?

I don't recall him being mentioned in coverage of the Hofstra case.

jamil hussein said...

"We expected this kind of behavior out of the Bush administration;"

Based on what evidence? The frequent bashing against "Bush DOJ" was quite frankly, embarrassing.

Besides, DOJ is run by career lawyers, basically all of them are hard-core leftists. Dismissing Black Panther voter intimidation lawsuit and other recent examples give compelling evidence that current DOJ (free of the oversight any conservative nominee) are politizising the department to unprecedent levels. This specific example here is yet another sad episode.

Especially the Civil Rights part of DOJ should be dismantled for good. it has nothing to do with civil rights, it is merely a Gang88fiefdom.

jamil hussein said...

"It was all a lie. Megan Williams, the Charleston woman who claimed she was kidnapped, sexually abused and beaten by "the Logan Six" now says it never happened. "

This case sounds familiar. Black woman claimed she had been gang-raped by 6 whiteys. As expected, local and national race-hustlers arrived at the scene.

Just for fun, I googled Sharpton and Logan six. What a surprise:
"Hundreds are expected to attend a hate crime awareness march in Charleston on Nov. 3, an event endorsed by Rev. Al Sharpton, Nation of Islam Minister Louis Farrakhan, the Southern Christian Leadership Conference, the National Conference of Black Mayors and the NAACP."

Jim in San Diego said...


Great analysis.

The case, as you explain it, raises two moral questions that all of us have to answer.

First, if someone is actually guilty of a horrendous crime, is it acceptable for a prosecuting attorney to break the usual rules of evidence and due process to convict them?

Second, if someone is actually innocent of a horrendous crime, but is convicted by a prosecuting attorney who breaks the usual rules of evidence and due process, what do we do about it?

No answers here, but these two ethical issues are related.

The great danger, it seems to me, is we tolerate the result in the first instance, and too casually accept the result in the second.

Jim Peterson

gak said...

Is there anybody reading this and in the know who would venture a guess as to the outcome of this case. I would think that SCOTUS wouldn't have taken this if they weren't going to overturn the lower courts or try to redefine a rule for determining aplicability.

Anonymous said...

Great work....been reading for years !

FYI from Bloomberg...

KV T'78

Judge Withdraws From AIG-Duke Lacrosse Stripper Suit

No Justice, No Peace said...

...marking a near-wholesale turnover of the university's most senior leadership.

It appears that, unlike Duke, some in the University of Illinois system have some stones and understand how to deal with inept leadership.

I first saw this on Instapundit so more than a few will see how to deal with an academic leadership scandal. This one included the Chancellor, President, and six trustees.

One wonders if any were other than white males? Maybe they don't have any stones after all.

Topher said...

"First, if someone is actually guilty of a horrendous crime, is it acceptable for a prosecuting attorney to break the usual rules of evidence and due process to convict them?"

Absolutely not. Let me say it again, hell no. Guilt or innocence has nothing to do with it, and guilt or innocence is not determined in the eyes of the law until the verdict is returned. You have an absolute constitutional right to due process of law and other protections (search and seizure rules, trial by jury, Miranda right). A prosecutor cannot simply decide you're the guy and short-circuit the normal rules. That doesn't even make any sense.

This ethical question is very simply answered by reasonable, reasoned people. Lawyers do not count themselves among that crowd.

One of many conventional wisdoms of OJ Simpson is "the police framed a guilty man." I find the framing accusation to be a pretty weak one in itself, but law enforcement taking it upon themselves to bolster a case because they think their suspect did it is arrogant and wrong. Same with prosecutors. They don't get to decide who's guilty.

Anonymous said...

The victim in the notorious West Virginia case that resulted in seven people pleading guilty to a variety of abuse and sex crimes, including a hate crime, has recanted her testimony. Wow.


Anonymous said...

For better or worse, the lacrosse case is in the Culture. Here's a snippet from Nancy Franklin's review (in the 10/22/09 New Yorker magazine) of CBS's new show, "The Good Wife:"

“The Good Wife” is pretty skillful at illuminating . . . shades of gray, the spectrum of compromise that plays out in law firms (and in office life in general). One of the senior partners . . . balks at taking a case brought by a stripper who claims that she was raped at a bachelor party, because, regardless of any merits the case may have, “it’s got Duke lacrosse written all over it.” What he means isn’t just that that real-life case was a bad one but that it drew irremediably bad publicity in the media; he’s worried about appearances.

Ken Duke

Anonymous said...

Good words, Jim Peterson.

Anonymous said...

A good analysis, although I don't know that Nifong is "desperately" seeking immunity. He is thumbing his nose at the whole system, and will do so forever, because the bankruptcy laws forbid attaching his fat pension -- fattened further by his crimes and lies, which propelled him into a higher office and prolonged his service (as you have reported).

Of course, I don't doubt that any employer or insurer responsible for the damages he caused (which will vary depending on the legal theory that ultimately prevails) may well be desperate, and getting more so.

But Nifong himself didn't lose so much as his guitars (now on "permanent loan" to him, from the deluded imbeciles who bought them at auction). His one night in jail is the only real punishment he will get -- unless we think he is sensitive enough to care that his very name has passed into the language as a synonym for a crooked prosecutor's railroading of innocent people.

But Nifong's punishment will never amount to one per cent of the pain that he deliberately inflicted on innocent people and their families, not to mention the damage he has done to the justice system itself. He committed the perfect crime, as only a prosecutor can do.

The Hounds of TASSers'ville said...

Unfortunately, many of these administrators culled by the scandal are not removed, just demoted. White and Herman are both joining the faculty in golden parachute deals alongside other corrupt administrators-turned- faculty members like Hurd, Ghosh, Amberg, etc.

In fact, Professor Johnson reported in the not too distant past that UC Davis was inflating rape counts. The institution is now run by Linda Katehi, who despite being a provost at the U of ILL caught in the scandal, is now promoted to Chancellor elsewhere. Sounds like a Moneta Moment.

Hound No. 2
The Hounds of TASSers'ville

No Justice, No Peace said...

"The world is a dangerous place, not because of those who do evil, but because of those who look on and do nothing." - Albert Einstein

No Justice, No Peace said...

"People who believe in absurdities will eventually commit atrocities." - Voltaire

Anonymous said...

Jim in San Diego said at 10:31 AM...


Great analysis.

The case, as you explain it, raises two moral questions that all of us have to answer.

First, if someone is actually guilty of a horrendous crime, is it acceptable for a prosecuting attorney to break the usual rules of evidence and due process to convict them?

Second, if someone is actually innocent of a horrendous crime, but is convicted by a prosecuting attorney who breaks the usual rules of evidence and due process, what do we do about it?

First, thank you, Jim in San Diego. That means a lot to me coming from you.

Second, I wish you had made the two questions more parallel. For instance, by asking the first the same way as the second, thusly:

"First, if someone is actually guilty of a horrendous crime, but is convicted by a prosecuting attorney who breaks the usual rules of evidence and due process, what do we do about it?"

I think we all know that we should punish the attorney. So the remaining question is, Should we reward the guilty by vacating his conviction? I'm not taking a side on it at this time as I've not thought about it very much.


P.S. For Jamal Hussein.

I wouldn't get too far out on this witness recantation in the "Logan Six" case. All her recantation proves is that she is an unreliable witness. It doesn't necessarily exculpate the accused. As I understand it, some of the accused persons' own statements to law enforcement were instumental in their convictions.

Jim said...

Duke police officer charged with rape.