…and the response that the prosecutors can’t be sued.
Back in 1978, two men, Curtis McGhee and Terry Harrington, were convicted of murdering security guard John Schweer, who had been killed while guarding a car lot. Their conviction rested almost completely on the testimony of one Kevin Hughes. Hughes was initially recruited to help the police solve the crime after he was arrested for riding in a stolen car. The police promised him that if he provided information to help solve the murder of Schweer, he would not be charged in connection with the murder, he would get his current charges dismissed, and be eligible for a $5,000 reward.
Hughes told the police many different stories: he first identified a suspect who he claimed admitted to him that he stole a Lincoln from the lot and shot the guard. Police advised him that no Lincoln was stolen. He next identified the killer as a man named Kelly. Police investigated this claim and discovered that Kelly had been demonstrably out of town that day. Hughes told the police the murder weapon had been a pistol, which was wrong, and then a 20-gauge shotgun, which was wrong, before arriving at the correct weapon, a 12-gauge shotgun. Finally the police began to tell Hughes specifically who they wanted him to identify, and he obligingly did so.
Working directly with the police and involved in the deception was the prosecutor, Assistant County Attorney Joseph Hrvol.
Hrvol also failed to mention at any time that the investigation had first centered on another man, Gates. Hrvol’s boss was running for re-election as county attorney for the first time, campaigning while the highly public crime remained unsolved. Gates was identified by three witnesses as being near the scene, with one witness able to say that he had a shotgun with him on the night of the crime. Eight reports were written by the police concerning Gates, and Gates failed a polygraph.
Nonetheless, the case proceded against McGhee and Harrington. Both of the accused men were convicted. They were given life sentences, exhausting their direct appeals possibilities. The exculpatory evidence surrounding the case, including the changing stories Hughes told and the existence of the suspect Gates was never disclosed to the defense.
And that’s where the story would have ended, but for the work of a prison employee, Anne Danaher. Danaher became friednly with Harrington and his family and began investigating the facts of the case. She uncovered the exculpatory evidence and the Iowa Supreme Court overturned the convictions based ont he Brady violation (the failure to provide exculpatory evidence to the defense).
The witness Hughes now admits he lied in an effort to secure the reward and dodge the car theft charge, and says that after several attempts on his part to concoct a workable story, detectives and prosecutors essentially told him what to say.
Harrington now sues the prosecutors, saying that they framed him. The prosecutors respond, in essence, “No, we didn’t, but even if we did, we’re entitled to absolute immunity for any actions we took as prosecutors.”
The case is now in front of the Supreme Court on this issue. At summary judgment below – in other words, a proceeding that takes every word the plaintiffs say as true, and every word the defendants say as a lie, the court determines if the plaintiffs can win.
The court below concluded that in a case of deliberate framing, absolute immunity did not apply, and that the prosecutors could be sued. The prosecutors now appeal this decision to the Supreme Court.
Weighing in on the side of the prosecutors: the United States. In other words, the Obama administration’s solicitor general will argue that the prosecutor’s absolute immunity applies in this case.
(The facts as I recite them above are taken from the plaintiff’s pleadings, which is correct to do as a matter of law – remember, this is summary judgment we’re talking about. Obviously the prosecutors argue they did so such thing.)
I think this is a surprising position for the administration to take. And a wrong one.