Previewing the Coming Term (Part 6): Pottawattamie County v. McGhee

[This is the sixth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-1065
Case: Pottawattamie County et al. v. McGhee et al.
Oral Argument Date: November 4, 2009

Issue:  Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation and introducing that same testimony against the criminal defendant at trial.

Factual and Procedural History:  In 1978, Curtis W. McGhee, Jr., and Terry Harrington, respondents, were convicted of murdering a retired police officer.  McGhee and Harrington were each sentenced to life in prison.  In 2002, the Iowa Supreme Court reversed Harrington’s conviction and remanded for a new trial, finding the prosecutor failed to disclose evidence of an alternative suspect.  The prosecutor concluded it would be impossible to retry Harrington and also agreed to move to vacate McGhee’s conviction.  McGhee agreed to enter a plea to second degree murder in exchange for a sentence of time served.  With these agreements, McGhee was released.

Both McGhee and Harrington brought civil rights actions against Pottawattamie County, Iowa, and the former prosecutors and officers involved in the initial investigation and prosecution.  They argued that these individuals used perjured and fabricated testimony and withheld evidence in violation of the Constitution.  The district court found the defendants were entitled to qualified immunity on certain claims, and denied qualified immunity and absolute immunity on the remaining claims.

Two of the original defendants filed a consolidated interlocutory appeal from the denial of qualified, absolute and sovereign immunity, arguing the district court (1) used an improper standard for determining probable cause in the absolute immunity analysis; (2) erred in waiving sovereign immunity for the prosecutors, and (3) erred in concluding McGhee and Harrington alleged a constitutional violation when the district court denied qualified immunity to the two defendant petitioners. 

The Eighth Circuit held the prosecutors’ procurement of false testimony violated respondents’ right to substantive due process; moreover, prosecutors were not entitled to immunity for that violation “where the prosecutor was accused of both fabricating evidence and then using the fabricated evidence at trial.”  The prosecutors filed a writ of certiorari, which was granted.  Oral argument is scheduled for November 4, 2009.

Summary of Petitioner’s Argument:  Petitioners argue they are absolutely immune from claims that they introduced perjured testimony at respondent’s trials.  According to petitioners, the courts below should not have “abrogated petitioners’ absolute immunity where the alleged constitutional injury was a conviction in violation of due process.”

Petitioners argue that instead of analyzing the relevant fair trial claims, the courts below erroneously focused on pre-trial conduct.  According to petitioners, liability against a prosecutor for the outcome of a trial, in this case a conviction in violation of due process, may not be predicated on conduct before trial.

Summary of Respondent’s Argument: No brief on the merits has yet been filed.

Brief for Petitioner Pottawattamie County, Iowa, Joseph Hrvol, and David Richter