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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.
Comments
The Central Park jogger case was is another example of how the justice system can be utilized to railroad defendants. This case was the justification for a massive campaign of police repression against minority youth. Even though the defendants have all been cleared and released from jail you can't unring the bell. Police and prosecutors should be held to a higher standard. It is unconscionable that there has been no recourse against the officials who committed this injustice.
CAREFUL: If prosecutors will lie and cheat simply to get convictions, imagine how much MORE criminal activity they will commit to avoid jail time.
The unintended consequences of holding prosecutors personally responsible might make the situation worse instead of better. Remember that in many caes, we would be asking police and other officers of the court to "turn on" DA's and ADA's thus risking their own careers in the process. It has been demonstrated time and again that cops, for example, will go to extreme lengths to cover up for one another simply to avoid harassment at work. Imagine the moral fortitude it would take for a career court officer to go against the grain and testify against higher-ups in the chain.
Police officers, prosecutors,judges more so then anyone should be held up to the highest standards of the law because they responsible for adminstering the law. A violation or a misconduct on thier part demoralizes and corrupts the whole system. In the States we were built upon the idea that no one is above the law, why would a prosecutor who broke the law be any different. Without this why don't we all move below the Mason-Dixon or to a bannana republic.
The nerve of the attorney to try even present this arguments hints at the arrogance that has taken place in and over powering and reaching government in local the and national arena. Perhaps it is the lack of civics taught in schools or the fact that we give the least educated (police officers), guns or maybe the the blue wall should be educated and diverse group with good pay, because to many of any one kind gets closed mindeness and a blind eye to unethical behavior, but someohe should gave reported this.
Then again where are the check and balances when a prosecutors job depends on convictions. It's like asking the guy at a cellphone store to figure out your bill when he paid to get sales.
I lived in Iowa when this all went down and a huge part of the problem is that McGhee is a known gang banger and has had more run ins with the law (and convictions involving drugs) than you can shake a stick at. What happened was law enforcement and the state finally seen the chance to get this scum off the street for good and they went for it. That is not to say I condone what happened but I do understand the "why" of it and that most Iowans were glad to see him locked up and hated it when he was released. The majority of people that know him took the attitude that even if he was not guilty of this crime, he was guilty of dozens of others so prison was where he belonged. On top of that, the vast majority are still convinced he was guilty in this murder but that the police and the county screwed up in how they went about gaining a conviction.
Now with all that said, I do hope the Supreme Court removes the blanket protection and holds the procescuter accountable for deliberately witholding evidence by allowing the suit to proceed. I also believe that McGhee is a fool for re-opening this can of worms in court. He got over but is a very long ways from being innocent and if he were smart he would walk away from it before he no longer can. His case will go in front of a jury and in Iowa, I don't believe they can find a jury that doesn't know the story or what sort of person McGhee is.
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It's a shame that this type of prosecutorial misconduct (withholding exculpatory evidence) occurs as frequently as it does. There are numerous stories out there (Picking Cotton, Darryl Hunt, etc.) that illustrate this fundamental unfairness, and unfortunately, actual people are living it and/or have been deeply affected by it. One of the few upsides is that when the exonerees actually gain their freedom, they fervently go out and attempt to prevent the same thing from happening to others through innocence projects, legislative action, and the like.
Still - it seems to be an uphill battle. I have heard something like out of millions of prisoners, 5% are actually innocent. And only a small percentage of that 5% will ever gain freedom or keep their lives just because they don't have the resources to fight. As the saying sadly goes - capital punishment is for those who don't have capital.
Something has to be done. I hope the Supreme Court sees that.
This is as bad as killers with diplomatic immunity. Whatever immunity afforded diplomats, prosecutors, etc. should only apply if they themselves are not breaking the law. Framing 2 men for 20 years...talk about an eye for and eye and a tooth for a tooth, they should have to complete these guys sentences, life in prison w/o parole. Talk about a deterrent.
As for Wood, whose IQ makes him mentally retarded, I don't know what to say. There was a case sometime between 2000 - 2002 where the Supreme Court had to tell that state they could not execute a mentally retarded man.
While I'm at it, DAs who don't want to DNA test old evidence in fear that their cases will be overturned are another sore spot. If they're so sure they've got the right person, DNA testing would only confirm that the right person is doing time for the crime.
It won't happen cause "it's too much like right", as my son's godmother used to say.
I hope that the Supreme Court has the sense to see how warrantless this argument is, that the Constitution doesn't protect us from being framed by lawyers and law enforcement...This case should be open and shut, and it should have never been taken this far. However, I hope that the Court can have the decency to see that this is vermin at their best, and reject this ridiculous and disturbing argument. If they don't, every American, particularly minority Americans, can be set up, across state lines, anywhere, and framed for crimes and the framers would not be held accountable...So what happens when one of these rogue lawyers set someone up and they get the death penalty? They say "Oh well!" Oops? Naw, something is wrong with that, and this needs to be shot down for the madness it is...