Prosecutors: A Protected Criminal Class

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There is no legal or civil recourse for innocent people framed for murder by corrupt, ambitious prosecutors. This is the position taken by respondents — including the Obama administration, 28 state governments, and “every major prosecutors organization in the country” — in a lawsuit scheduled to be heard by the Supreme Court, reports NPR.

Plaintiffs Terry Harrington and Curtis McGhee served 25 years in prison for the murder of a retired police officer in Council Bluffs, Iowa, before critical, long-buried police records were pried loose through Harrington’s persistent campaign for exoneration.

The suppressed records documented a conspiracy by police and prosecutors to suborn perjury against Harrington and McGhee while suppressing evidence that pointed at another suspect — Charles Gates.

Omaha residents Harrington and McGhee were two young black men from across the state line; Gates was a white hometown resident whose brother-in-law was a captain in the Council Bluffs Fire Department. Witnesses had seen Gates in the vicinity of the murder with a shotgun. He failed a polygraph test when questioned by the police. Yet the police let him go and focused their attention on Harrington.

The chief witness against Harrington and McGhee was a juvenile criminal named Kevin Hughes, who had originally identified two other men as the murderers. He also equivocated about the murder weapon, first identifying it as a handgun, then a 20-gauge shotgun, and finally as a 12-gauge shotgun. Hughes also failed a polygraph test. Yet his “testimony” was sufficient to indict Harrington and McGhee, and he was the star witness in the trial that resulted in a life sentence for the two men.

After the police records were uncovered in 2003, Harrington successfully petitioned the Iowa State Supreme Court to overturn his conviction. Subsequently, all of the witnesses against him recanted their perjured testimony. Harrington and McGhee (who agreed to a plea deal in exchange for time served) have field a federal civil rights lawsuit against the prosecutors and police who framed them.

In a fashion familiar to students of the criminal sociopaths who become prosecutors, the team responsible for wrongfully sending Harrington and McGhee to prison maintain that they are guilty. They then offer a contradictory and terrifying defense: Even if they did frame those innocent men, “prosecutors, under established Supreme Court precedent, have total immunity from being sued,” summarizes NPR.

It should surprise nobody that the Supreme Court has confected a doctrine of plenary immunity for prosecutors, who cannot be sued for anything they do at trial — such as lying, concealing evidence, suborning perjury from the witness stand, and the other familiar tactics found in the arsenal of every government-employed lawyer.

Stephen Sanders, the attorney for the respondents in the lawsuit, insists that there is “no freestanding constitutional right not to be framed.” Even when prosecutors file charges they know are false and malicious, “that’s an absolutely immunized activity,” he claims.

Harrington and McGhee maintain that the courtroom immunity claimed by prosecutors does not extend to the investigative phase of this case, which is where the conspiracy to frame the plaintiffs was enacted. Former Solicitor General Paul Clement, who represents the wrongfully imprisoned men, notes that the relevant precedents all apply after an indictment has been filed.

If Harrington and McGhee prevail in this case, it will be an ironic and bitter victory, since it will simply ratify something rational people should consider obvious — namely, that prosecutors shouldn’t engage in criminal conspiracies for the purpose of imprisoning innocent people.

Immunizing prosecutors against such crimes is entirely typical of the culture of corrupt impunity that has enveloped the “justice” system.

Here’s another illustration: Just days ago a federal appeals court ruled that Canadian citizen Maher Arar, who was unjustly detained by the federal government at JFK airport and then sent to Syria to be tortured for nearly a year, has no legal or civil recourse against the officials responsible for his suffering.

Consider as well that in a dissenting opinion written just a few months ago Supreme Court “Justice” Antonin Scalia made the remarkable claim that there is no constitutional prohibition against executing a wrongfully convicted individual: “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a court that he is ‘actually’ innocent.”

The people operating the government’s apparatus of prosecution, imprisonment, torture, and official murder are a specially protected criminal class far more threatening than their private sector competition.

(Thanks to David Kramer for letting me know about the Harrington/McGhee case.)

8:39 am on November 4, 2009
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