Supreme Court appears split on tackling rogue prosecutors
The Supreme Court Wednesday heard arguments in a lawsuit brought by
two Iowa men who spent 25 in prison after prosecutors allegedly
fabricated evidence against them. Justices seemed divided on the
issue of how much immunity prosecutors should enjoy.

By Warren Richey | Staff writer of The Christian Science Monitor
from the November 4, 2009 edition
http://www.csmonitor.com/2009/1105/p02s01-usju.html

WASHINGTON - The US Supreme Court on Wednesday took up the difficult
issue of what to do about unscrupulous prosecutors willing to induce
false testimony and hide exculpatory evidence to convict innocent
defendants.

At issue in Pottawattamie County v. McGhee is whether two men sent to
prison for life are entitled to sue the local prosecutors in Iowa who
helped arrange false testimony that led to their wrongful convictions.

Both men served 25 years in prison before being released after
investigators discovered the false testimony and uncovered
exculpatory evidence never disclosed to defense lawyers.

The high court has long recognized that prosecutors presenting a case
at trial enjoy absolute immunity from citizen lawsuits seeking
compensation for alleged violations of their constitutional rights.

But the court has also recognized that a prosecutor may not enjoy the
protections of absolute immunity when serving not as a trial advocate
but as an investigator searching for clues and corroboration that a
crime has been committed.

During oral argument on Wednesday, the justices split into three
camps. In one camp were Justices Ruth Bader Ginsburg, John Paul
Stevens, and Sonia Sotomayor, who appeared primarily concerned with
ensuring that victims of such prosecutorial misconduct have a
potential remedy through a civil lawsuit.

In another camp were Chief Justice John Roberts and Justice Samuel
Alito who appeared primarily concerned with the potentially "chilling
impact" on all prosecutors if the court allowed some defendants to
file such citizen lawsuits.

In the center were Justices Anthony Kennedy, Stephen Breyer, and
Antonin Scalia who appeared to share the concerns of both other camps.

Deputy Solicitor General Neal Katyal, arguing in support of absolute
immunity for the two prosecutors, said the government's position was
based on important societal concerns that prosecutors feel free to
act as vigorous advocates.

"Absolute immunity doesn't exist to protect a few bad apples," Mr.
Katyal said. If prosecutors know they may be sued by disgruntled
defendants "they will flinch in the performance of their duties."

Paul Clement, a former solicitor general arguing on behalf of the two
wrongly-convicted defendants, said the federal appeals court in New
York has allowed such citizen lawsuits against prosecutors since
2000. "There has not been a flood of these cases," he said. "There
has been a trickle."

Mr. Clement said he had identified 17 cases brought since the 2000
appeals court action.

Chief Justice Roberts said his concerns went beyond just potential
litigation. "We are concerned about the chilling effect on the
prosecutors," he said.

Stephen Sanders, a Chicago lawyer representing the two former
prosecutors, urged the court to maintain an expansive application of
absolute immunity for all prosecutors.

He warned that if the high court ruled for the two wrongly-convicted
defendants, "it would work a radical change in the law of immunity."

A decision in the case is expected by June 2010.