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.