You can read the transcripts in Pottawattamie County v. McGhee and Wood v. Allen, via the Court's website.
Adam Liptak writes, "Justices, in Aftermath of 2 Murder Cases, Hear Claims of a Process Gone Wrong," for today's New York Times.
The Supreme Court heard arguments Wednesday in two cases involving claims that the criminal justice system had gone badly awry.
In one, Iowa prosecutors are accused of fabricating evidence that sent two innocent men to life imprisonment for murder. In the other, an Alabama prisoner attributed his death sentence to an appointed defense lawyer’s failure to present evidence at the sentencing phase of his trial.
In the Iowa case, Curtis W. McGhee Jr. and Terry J. Harrington, having spent 25 years in prison, were freed after the Iowa Supreme Court’s determination in 2003 that the main witness against them was “a liar and a perjurer.”
The two men then sued Joseph Hrvol and David Richter, prosecutors in Pottawattamie County, accusing them of coaching and coercing the witness into providing false testimony. For purposes of their appeal to the Supreme Court from a lower court ruling allowing the suit to go forward, the prosecutors accepted the truth of the accusations against them and argued instead that they were entitled to complete immunity from being sued.
It is well established that prosecutors cannot be sued for anything they do during trial, including knowingly submitting false evidence. The question in the Iowa case, Pottawattamie County v. McGhee, No. 08-1065, is whether that immunity extends to prosecutors’ pretrial conduct.
Stephen S. Sanders, a lawyer for the Iowa prosecutors, acknowledged that police officers can be sued for fabricating evidence later used to obtain a conviction. So too, Mr. Sanders said, can prosecutors who had nothing to do with presenting the fabricated evidence at trial. But trial prosecutors, he said, should enjoy complete immunity for anything they do before or during trial.
Justice Anthony M. Kennedy, who is often the swing vote in cases concerning the scope of the Constitution’s due process clause, appeared troubled by the distinction.
“So the law is, the more deeply you’re involved in the wrong, the more likely you are to be immune?” Justice Kennedy said. “That’s a strange proposition.”
And:
The Alabama case, Wood v. Allen, No. 08-9156, arose from the appointment of a lawyer who was less than a year out of law school to help defend Holly Wood, convicted in 1994 of murdering his former girlfriend. The lawyer, Kenneth B. Trotter, failed to pursue or present evidence that Mr. Wood was mentally retarded, though he had a competency report in hand that said as much.
Wednesday’s argument in the case was almost entirely concerned with a 1996 law that limits the claims federal courts can hear from death row inmates.
“It is just repetitive, and it gets people mixed up,” Justice Stephen G. Breyer said of two seemingly duplicative provisions of the law, the Antiterrorism and Effective Death Penalty Act.
Justice Kennedy was also frustrated. “So I have a choice of something that is counterintuitive or superfluous,” he said, “and I don’t know which one to take.”
Various solutions were proposed about how to harmonize the two provisions, but they seemed only to complicate matters further.
Adopting one of those solutions, Justice Breyer said, would lead to confusion and litigation in equal measures. “There will only be four professors in the country who understand which is which,” he said, “and they will each say different things.”
It was not clear, though, that any answer to the question of how to read the dueling provisions would be of help to Mr. Wood.
Some justices said his best argument, under yet a third provision of the law, was not properly before the court. Others said Mr. Wood would have been no better off had his defense worked harder.
"High Court Justices Weigh Tradition of Prosecutorial Immunity Against Potential Civil Rights Violations," is the title of Tony Mauro's report for National Law Journal.
Police who manipulate evidence have only qualified immunity, but prosecutors have long enjoyed absolute immunity, at least for their actions at trial. At issue in the Iowa case is the scope of immunity for prosecutors who are performing police-like duties before trial and then either participate or don't participate in the trial where they would acquire full immunity. County Attorney David Richter and an assistant county attorney, Joseph Hrvol, were targeted in the lawsuit, which alleges prosecutorial wrongdoing through the investigation that carried into the trial.
Several justices appeared disturbed by the facts of the case and unwilling to let prosecutors completely off the hook. But the long tradition of strong prosecutorial immunity also seemed to tug at the Court. "We're worried about the chilling effect on the prosecutors," said Chief Justice John Roberts Jr. at one point.
The former Iowa inmates had an unusual advocate making their case Wednesday: former Bush administration Solicitor General Paul Clement, who represented the Bush Justice Department in 49 previous arguments before the Court.
Now with King & Spalding, Clement agreed to represent the two pro bono to make the point that even prosecutorial immunity has its limits, and that the Iowa prosecutors' misdeeds were beyond the pale.
"The police officer that engages in this misconduct has committed a grave, grave constitutional violation and ought to be liable," Clement told the Court. "I think the prosecutor who engages in the pretrial misconduct and then doesn't participate in the trial is just as liable as that police officer, and I can't think of a single reason why the only reason a prosecutor would get absolute immunity is if they not only participated in the pretrial misconduct but completed the scheme by committing further misconduct at trial."
Clement added that it would be "really perverse" to have a system where police acting alone could be sued for fabricating evidence, but the misdeeds would be immunized from suit if a prosecutor joins in the wrongdoing.
But Clement, along with the justices, struggled to define the point at which prosecutors doing police-like investigative work at early stages of a case are transformed into prosecutors whose actions should not be challenged.
For their part, the lawyers arguing in favor of immunity said the Court needed to hold the line on lawsuits against prosecutors, to prevent litigation by every disgruntled defendant who can poke holes in the government's case.
Jurist posts, "Supreme Court hears arguments in prosecutorial immunity, capital cases," by Jaclyn Belczyk.
In Wood v. Allen, the Court heard arguments on whether the state court erred in concluding that during the sentencing phase of a capital case the defense attorney's failure to present the defendant's impaired mental functioning did not constitute ineffective counsel and whether the circuit court erred in its application of the Antiterrorism and Effective Death Penalty Act (AEDPA) to the review of the state court decision. The US Court of Appeals for the Eleventh Circuit reversed a district court decision that had granted the defendant Holly Wood's habeas petition. Counsel for the petitioner Wood argued, "that there was no strategic decision here, that in fact it was a failure to investigate in violation of this Court." Counsel for the respondents argued that the AEDPA was applied correctly.
Earlier coverage begins with this post. All briefing is at the ScotusWiki pages for Pottawattamie County v. McGhee and Wood v. Allen.
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