Will the Supreme Court Stop Prosecutorial Misconduct?

Supreme Court Chief Justice John Roberts

Last year, prosecutors in the county of Pottawattamie, Iowa, narrowly avoided a potential ruling by the Supreme Court that would have held them liable for their role in the wrongful conviction of two black teenagers. The two prosecutors in that case, Joseph Hrvol and David Richter, coerced false testimony from a 16-year-old witness, fabricated evidence and withheld exculpatory evidence, resulting in the 1978 conviction of Terry Harrington and Curtis McGhee for the murder of an off-duty police officer.

In fact, the prosecutors built an entire case against the young men despite having strong evidence from early in the investigation that another man had committed the murder. Harrington and McGhee were convicted and sentenced to life in prison without parole. Both men served nearly 20 years before they were able to access the police reports that revealed the prosecutors' actions. 


After spending another five years in prison challenging their conviction, Harrington and McGhee were finally released. They brought civil rights suits against the county and the prosecutors in an attempt to collect damages for the deprivation of their liberty and for what they contended was the prosecutors' racially motivated violation of their constitutional rights. Federal courts found that the prosecutors were immune from a suit for their prosecutorial actions — that is, for the actions they took after charges had been filed against the two young men. But the prosecutors were not immune from a suit for their investigatory acts: fabricating and manufacturing evidence before formal charges were filed. 

The Supreme Court decided to review the case last term. The Obama administration, through Solicitor General Elena Kagan, filed a brief supporting the prosecutors' argument that they should be immune from civil liability for their actions framing Harrington and McGhee. But perhaps recognizing the likelihood that the court would not look favorably on a claim for absolute immunity by prosecutors on such egregious facts — and most likely at the urging of prosecutors' offices across the nation seeking to avoid an unfavorable court decision — Pottawattamie officials settled the case for $12 million, two months after oral argument was heard and the Supreme Court dismissed the case.

But as the court's 2010 term opens this week, the issue of prosecutorial misconduct is once again before the bench. This time the case involves a multimillion-dollar judgment awarded to another black man who was prosecuted by the New Orleans district attorney's office and convicted for a murder he did not commit. John Thompson spent 14 years on death row, and learned only a few weeks before his execution date that the prosecutors had withheld exculpatory evidence that would likely have demonstrated that he was not the murderer.

He spent another four years in prison challenging his wrongful conviction and was finally granted a new trial. The jury deliberated for 35 minutes before acquitting Thompson of the murder. Thompson then brought a civil rights claim under 42 U.S.C. section 1983, charging that the D.A.'s office had deprived him of his constitutional rights. A jury ruled in Thompson's favor, awarding him $14 million — $1 million for every year he was held on death row. 


Prosecutors — and anyone who's seen the movie My Cousin Vinny — should know that prosecutors are required by law to furnish defense attorneys with any exculpatory evidence that comes into their possession. The Supreme Court conclusively decided this in 1963 in a case called Brady v. Maryland.  In the case of Thompson, that evidence took the form of DNA evidence that would have demonstrated that Thompson was not the shooter. The police report also included a witness statement identifying the murder suspect as having "close-cropped" hair. When police arrested Thompson several days after the murder, he had a large Afro. None of this information was provided to Thompson's defense counsel.

Thompson's attorneys charged that Connick's office provided no training to their prosecutors on Brady requirements. Their claim was bolstered by the training manual used in the New Orleans district attorney's office, which included only four lines about Brady — and those four lines improperly set out the standard under Brady. Connick didn't help his case either. He testified that he "stopped reading law books in 1974."


Nevertheless, Connick argues that his office cannot be subject to civil rights liability for failing to train his prosecutors on their Brady obligations, based on only one violation. Instead, Connick (supported by the National Association of District Attorneys) argues that Thompson would have had to prove a pattern and practice of Brady violations by the district attorney's office to prevail on a claim based on failure to train.

It's sometimes difficult to imagine how sworn officers of the court can make such arguments. It's enough that a man's life was stolen by the deliberate and indifferent acts of prosecutors acting under Connick's authority. But to attempt now to deny Thompson some recompense for this gross miscarriage of justice reveals a dangerous air of untouchability that surrounds some prosecutors.


Thompson's experience (along with that of Harrington and McGhee in the Pottawattamie case from last year) suggests an ugly and possibly widespread phenomenon that most often goes unchecked and unpunished. Rather than express remorse and shame for revelations surrounding this conduct and cracking down on misconduct, prosecutors are doubling down and insisting that their officers should be protected from civil liability for abusing their office and flagrantly violating the law.

What's clear now is that the court must send a strong message to prosecutors' offices about their obligations to uphold the rule of law. When rogue prosecutors from Pottawattamie, Iowa, to New Orleans, La., are empowered to recklessly steal the lives of young black men at will without consequences, it threatens the legitimacy of the entire system of justice in our country. If these are not civil rights violations, then I question whether our civil rights laws exist in name only.


Oral argument is scheduled for Oct. 6. It will be interesting to see how various members of the Supreme Court respond to Connick's arguments — particularly the two career prosecutors, Justices Alito and Sotomayor. At the argument in Pottawattamie, Justice Alito was depressingly focused on the chilling effect on prosecutors if they were subject to civil liability for depriving criminal defendants of their constitutional rights, rather than on the need to ensure that victims of prosecutorial misconduct have some form of redress when they are framed by prosecutors. But if, after oral arguments, there are indications that the court seems likely to rule against Connick, it wouldn't be surprising to find a Pottawattamie-like settlement hammered out before the court gets a chance to rule. And the question of whether prosecutors can deliberately destroy with impunity the lives of innocent young men will have to wait for another day.

Sherrilyn Ifill teaches law at the University of Maryland. She is a frequent contributor to The Root.

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