When Lawyers Go Rogue

The Supreme Court considers what to do when prosecutors play dirty.

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It’s fashionable to bash lawyers in this country. The truth is that the vast majority of lawyers are hard-working, ethical, committed to the rule of law and vindicating the rights of their clients. But the Supreme Court has two cases before it that will determine the consequences of lawyer conduct that falls below or outside professional standards, and that has widespread implications for our system of justice.

The first case, Pottawattamie County, IA v. McGhee was argued last week and involves the misconduct of two state prosecutors in Iowa. The lawyers allegedly withheld exculpatory evidence that would have likely exonerated two criminal defendants charged with murder. The two men, Terry Harrington and Curtis McGhee Jr., were prosecuted, convicted and sentenced to life in prison without parole.

After serving almost 20 years in prison, one of the men, Harrington, befriended a prison barber who helped him obtain the police file from Harrington’s murder trial. He and his counsel had never seen these files, despite repeated requests during the criminal proceedings. There, Harrington learned that the prosecutors in his case, David Richter and Joseph Hrvol, had worked with police to obtain the testimony of a 67-year-old who falsely implicated Harrington and McGhee, who were teenagers at the time of the crime. The “witness”—Kevin Hughes—gave a false testimony, and both the police and the prosecutors knew it. Hughes failed a polygraph test, and at one point admitted that he was lying when he implicated Harrington and McGhee. Hughes incorrectly identified the location of the murder and the make of the murder weapon. So detectives and the state prosecutor took the Hughes to the crime scene and furnished him with the correct information about the details of the crime. And the prosecutors used Hughes at trial to convict the defendants. It bears mentioning, of course, that Harrington and McGhee are black, and that the original suspect in the case—for whom there was strong circumstantial evidence of guilt—was the white brother-in-law of a captain in the local fire department.

After seeing the evidence that he'd been framed, Harrington sought post-conviction relief from the Iowa state court in 2001. The Iowa Supreme Court vacated Harrington’s conviction and ruled that his due process rights had been violated. In 2005, Harrington and McGhee sued various Pottawattamie County officials and the state prosecutors for conspiring to deprive them of equal protection of the laws as guaranteed by the 14th amendment to the Constitution and for denying them due process of the law.

The question before the Supreme Court is whether the prosecutors are entitled to immunity from suit. While prosecutors are entitled to immunity from suit for the actions they take at trial, it’s not clear that the prosecutors’ actions in this case, which took place even before the defendants were charged, are even entitled to partial immunity. The ability of Harrington and McGhee to sue prosecutors in this case would strike a blow against prosecutorial misconduct—particularly the egregious, indefensible actions of prosecutors who fabricate evidence to wrongfully convict innocent men and women.