As detailed in a recent article in The Washington Post, the U.S. Supreme Court is deliberating a case of wrongful
imprisonment and prosecutorial misconduct stemming from a 1978 Iowa murder.
A retired police officer working as a security guard in Council Bluffs was shot. Curtis W. McGhee Jr. and Terry
Herrington were convicted of murder and sentenced to life in prison. Twenty-five years later, they were released when
records documenting fabrication of evidence and coercion of perjury came to light.
The Post says Pottawattamie County prosecutors Joseph Hrvol and David Richter, who were actively involved in the
pretrial investigation, were under pressure to win a conviction in this high-profile cop-killer case (the deceased
was related to a city fire official). They originally targeted a man seen by witnesses near the murder scene with a
weapon like the murder weapon, and that man failed a lie detector test.
Later (the article doesn't explain why), they discarded that suspect, settled on McGhee and Herrington, threatened a
16-year-old witness and coached him to testify that McGhee and Herrington were the killers, though he'd originally
said it was somebody else. Information about the other suspect never was disclosed to the defense.
I haven't read the original reports and can't vouch for what was in there or how convincing it was, but evidence of
misconduct must have been compelling for a court to overturn the convictions.
After their release from prison, McGhee and Herrington filed a civil-rights lawsuit for deprivation of liberty
against Richter and Hrvol - the case now before the Supreme Court.
Stephen Sanders, attorney for the prosecutors, says the deprivation of liberty was the result of conviction at trial, not the prosecutors' pretrial shenanigans (for me, this doesn't pass the bovine excrement test), and they can't be
sued, anyway, because prosecutors must have absolute immunity if they are to do their jobs.
If a prosecutor's absolute immunity in judicial proceedings means anything," said Sanders, it means that a
prosecutor may not be sued because a trial has ended in conviction."
Chief Justice John Roberts and Justice Samuel Alito agreed concern about leaving prosecutors vulnerable to being
hauled into civil court by any criminal they put away" was well-placed, but Justice John Paul Stevens called the
plaintiff's argument perverse," seemingly in sympathy with another McGhee/Herrington attorney, former solicitor
general Paul D. Clement.
Is it really plausible to think the Congress that passed this statute (prosecutorial immunity) didn't want to
provide a remedy in the circumstances before the court today?" Clement said.
Deputy Solicitor General Neal Katyal, speaking for the prosecutors, said there is no free-standing due-process right
not to be framed," (more bovine excrement) and argued that if prosecutors had to worry about potential lawsuits, they
might flinch" from their duties.
I think I'd be at least as concerned with making sure everyone involved in the criminal justice system - police
officers, forensic experts, medical examiners and lawyers alike - flinch at the idea of framing people.
firstname.lastname@example.org Dr. Carol J. Huser, a forensic pathologist, has served as La Plata County coroner since