When Lawyers Go Rogue

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

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.

The second lawyer conduct case involves a claim of ineffective assistance of counsel in a case in which the defendant, Holly Wood, received the death penalty for the murder of his ex-girlfriend. In Wood v. Alabama Dept. of Corrections, a lawyer admitted to practice for only four months, was assigned by two more experienced attorneys on the defense team to handle the sentencing phase of a capital murder case. Although the defendant had “significant mental deficiencies” (in fact, Wood’s IQ put him within the range of mentally retarded), the lawyer assigned to the sentencing phase of the case, Kenneth Trotter, failed to present to the jury any of the critical mitigating evidence about the defendant’s mental capacity that might have forestalled the imposition of a death sentence. One can’t help but feel compassion for the novice lawyer, who continually asked for additional assistance from the experienced attorneys and who, at one point, expressed concern that he didn’t have “anyone with whom to discuss the case, including the two other attorneys.” With a man’s life hanging in the balance, the attorney conducted the sentencing hearing without having investigated or presented evidence that might have made a difference to the jury.

The right to effective assistance of counsel is among the guarantees set out in the 6th amendment to the Constitution. But what constitutes ineffective assistance of counsel is a question with which the Supreme Court has grappled over the past 20 years. The standard was set in a case called Strickland v. Texas in 1984, in which the court found that in capital cases the duty to provide effective assistance includes “mak[ing] reasonable investigations” evidence that might mitigate the death sentence.

Both the Wood and Pottawattamie cases have put lawyers—not their clients—clearly in the spotlight. Pottawattamie involves deliberate misconduct by government lawyers (whose obligation to seek justice and uphold the integrity of the system is even more compelling). Two men served 20 years in prison for a crime they didn’t commit. The conduct of the prosecutors in the case leads to obvious and ominous questions about how widespread this kind of conduct may be, and the number of other criminal convicts serving time on trumped-up charges advanced by police officers and prosecutors. But the Wood case also has important implications for our system of justice.

Whatever the court’s decision in this case, it should compel lawyers everywhere to examine ourselves and our profession—from the training we offer young lawyers to the ongoing need to ensure that experienced lawyers are appointed and adequately compensated for work on death penalty cases. The shameful conduct of the prosecutor in Pottawattamie and the inexperienced defense counsel in Wood offer a harsh indictment of our failure to effectively guard against the excesses of those in our profession who hold the power of life and death in their hands.

Sherrilyn A. Ifill is a regular contributor to The Root.