"There Is No Freestanding Constitutional Right Not To Be Framed"

[The Lone Ranger]

I was listening to NPR this morning, and heard a surprising story. At first, I had difficulty believing it.


As best I can recall, the story goes like this. In 1977, in Iowa, two African-American men (Curtis W. McGhee Jr. and Terry J. Harrington) were sentenced to imprisonment for life for the murder of a white police officer.

They spent 25 years in prison, even though the main "witness" had given conflicting and inconsistent testimony during the trial. (Over time, he changed his story several times.) Okay, that's not so surprising, actually. Plenty of people (especially African-Americans, it seems) have been convicted on the flimsiest of evidence.

But it gets worse -- much worse.


After they had been in jail for years, one of the men befriended a prison barber, who made a request for the police files on the case. It turned out that important evidence had apparently been deliberately withheld from the defense lawyers -- and that the prosecuters had coaxed the "star witness," and coerced other "witnesses" to lie and withhold evidence from the defense.

In short, the prosecution knowingly framed McGhee and Harrington.


When this came out, the Iowa Supreme Court concluded that the "star witness" against McGhee and Harrington was a "liar and perjurer" and freed Mr. Harrington -- after 25 years in prison. McGhee was ultimately freed too, after entering a conditional guilty plea and being allowed to go free with time served.


Now the two men -- understandably -- want to sue, given that the evidence against them was apparently fabricated by the prosecution. The Iowa prosecutors are hoping to convince the Iowa Supreme Court to dismiss the lawsuit on the grounds that "There is no freestanding constitutional 'right not to be framed.'"

Huh?


Okay, I think I understand the argument that prosecutors deserve at least some protection from prosecution, otherwise people will be forever targeting them with lawsuits -- out of vengeance or as a deliberate attempt to fowl up the legal system.

But prosecutors should be protected against lawsuits even when they fabricate evidence and wind up convincting [presumably] innocent people?


That sounds awfully hard to justify, at least to me. Seems to me that such activity would justify them losing their jobs, at the very least.


Cheers,

Michael

[Clutch Munny]

In Canada, such cases sometimes result in financial settlements. I don't know whether they have ever resulted in firings or significant discipline for the police or prosecutors involved.

In fact, if there's any loose pattern, it's that the law enforcement people who do such things shoot up through the system. For example:

Ultimately, the police used a letter written by an RCMP officer (which threatened a witness) to hold [murder suspect Jason] Dix in jail for almost 2 years. They continued to use a number of undercover operatives to try to obtain a confession from him in jail. Dix’s marriage broke up, he was denied contact with his children, and he tried to commit suicide. When a judge discovered the letter used to hold Dix had been in fact been fabricated, the charges were dropped and Dix was released. In 2002 Dix was awarded $765,000 in damages from the RCMP and the Crown Attorney’s office. One of the RCMP investigators has since been promoted twice, and now leads the detachment that conducted the original investigation (p.172).
-- Steven M. Smith, Veronica Stinson, and Marc W. Patry. USING THE “MR. BIG” TECHNIQUE TO ELICIT CONFESSIONS: SUCCESSFUL INNOVATION OR DANGEROUS DEVELOPMENT IN THE CANADIAN LEGAL SYSTEM? Psychology, Public Policy, and Law 2009, Vol. 15, No. 3, 168–193.

I'm working on stuff related to this right now, in fact.

[Nullifidian]

I think that a strong case can be made that the defendant's due process rights are infringed when they're convicted based on fabricated evidence. Just like there's no "freestanding right" to individual ownership of guns or a "freestanding right" to privacy, the principle is still embedded within the Bill of Rights.

And I see that the plaintiffs' case is based on a substantive due process claim. Good to see that even an observer with no legal training can pick up a thing or two.

I think that the court may rule for the plaintiffs in this case, given that the defense wants to extend the SCotUS case beyond what was decided:

Like the prosecutors, McGhee and Harrington argue that Buckley is significant, but for a different reason: although the Court in Buckley held that prosecutors have “absolute immunity” for conduct that “occurs in the course of [the prosecutor’s] role as an advocate for the State,” it also made clear that prosecutors have only “qualified immunity” for certain investigative acts.

I doubt the Iowa Supreme Court will want to extend qualified immunity to suborning perjury.

[Sauron]

The prosecutors should be disbarred - both for the original witness tampering and failure to disclose evidence - as well as their current ridiculous defense of such acts.

[Stephen Maturin]

Originally Posted by The Lone Ranger

The Iowa prosecutors are hoping to convince the Iowa Supreme Court to dismiss the lawsuit on the grounds that "There is no freestanding constitutional 'right not to be framed.'"

The current litigation is a civil rights lawsuit commenced in the federal court system after the state courts had turned these guys loose. The case is based on 42 U.S.C. § 1983, which Congress passed in the wake of the Civil War and the federal courts have been disemboweling a little at a time ever since.

Anyway, what happened today was oral argument in the U.S. Supreme Court. The transcript (pdf, 74 pages) is here and the Christian Science Monitor's recap, which at first blush looks pretty good, is here.

The Eighth Circuit Court of Appeals opinion (pdf, 17 pages) under review is available here. My personal favorite among the Supreme Court filings is the amicus brief (pdf, 60 pages) of the NACDL, Cato Institute and ACLU.

When they talk about "immunity" in this case, they're referring exclusively to immunity from civil liability under § 1983. In past cases SCOTUS has held that prosecutors have absolute immunity from civil liability based on presentation of evidence at trial. Everyone in the present case appears to agree that a prosecutor can knowingly and intentionally use made-up bullshit evidence at trial and escape 1983 liability completely. The issue in this case is whether absolute immunity extends to a prosecutor's knowing and intentional creation of made-up bullshit evidence during the investigative phase.

Regardless of how this case turns out, the state remains free to hammer these pricks in any way state law allows (disbarment or other disciplinary sanctions, criminal prosecution, if available, etc.). Again, civil liability under the federal statute is the only issue in this case.

[Clutch Munny]

Breaking news. This is another instance in which the police involved in outright fabrication and the coercion of evidence from children in a sexual abuse case were promoted and honoured -- the worst of them becoming superintendent of criminal investigations before being allowed to take retirement and pension after being convicted of malicious prosecution. And now the prosecutor has been cleared of malicious prosecution on appeal -- by dint of the absence of proven "improper motives".

The judge in the malicious prosecution case reasoned (among other things) that the impossibility of reasonably believing the (outrageous, physically impossible) testimony presented by the children meant that a malicious motive could be indirectly inferred, all proper prosecutorial motives being inconsistent with a reasonable apprehension of the evidence.

The Supreme Court ruled that this is an error, since reasoning about the crown prosecutor's subjective state of belief is out of place when considering whether the prosecution was "undertaken without reasonable and probable cause", and can only be raised when dealing with the question of whether the prosecution was "motivated by malice or a primary purpose other than that of carrying the law into effect".

In short, the trial judge considered these questions to be evidentially entangled, and the SCC asserted that they cannot be so treated. Their reason for separating the questions is that:

[t]he reasonable and probable cause inquiry is not concerned with a prosecutor’s personal views as to the accused’s guilt, but with his or her professional assessment of the legal strength of the case. Given the burden of proof in a criminal trial, belief in "probable" guilt means that the prosecutor believes, based on the existing state of circumstances, that proof beyond a reasonable doubt could be made out in a court of law... [W]here the action is taken against a Crown attorney, the inquiry into the prosecutor’s subjective state of belief does not properly belong at the third stage of the test. In the context of a public prosecution, the third element necessarily turns on an objective assessment of the existence of sufficient cause.

I am not a lawyer. But this strikes me as slightly precious reasoning. After all, the question of whether a conviction is reasonably securable can simply be the question of whether the prosecutor can sufficiently minimize, spin, or colour the available evidence even when s/he knows it to be defective or insufficient; or can simply hide other evidence that would contextualize or contradict the evidence that would otherwise give a reasonable chance of conviction. It's hard to see how the stated rationale for this SCC decision could permit a malicious prosecution conviction for a CP who thought his/her misdeeds could secure a beyond-reasonable-doubt conviction at trial, since "If the court concludes, on the basis of the circumstances known to the prosecutor at the relevant time, that reasonable and probable cause existed to commence or continue a criminal prosecution from an objective standpoint [where this has just been defined as the prosecutor's believing "that proof beyond a reasonable doubt could be made out in a court of law"], the criminal process was properly employed, and the inquiry need go no further." That is, the actual question of improper motives then can't be addressed.

The reasoning is also contrived inasmuch as it simultaneously rejects and depend on inferences about the crown prosecutor's state of mind. Subjective degree of belief about the defendant's guilt? Ah, well, that's subjective belief; so it's off limits, for the purpose of determining whether the CP was properly motivated in prosecuting the defendant! Subjective degree of belief about the securability of a conviction? Ah, well, that's somehow way more objective, and can be fertile ground for post hoc conjecture. Since the CP will always have prosecuted the case, the conjecture will always be that it was judged worth prosecuting.

There's also something dubious about the SCC's complaint that

in the trial judge’s view, the children’s allegations could not possibly give rise to a reasonable belief in probable guilt. That conclusion is not supported by the evidence. Several judges at both the trial and appellate levels in the criminal proceedings accepted and relied upon the same allegations by the children in convicting their biological parents. In the circumstances of this case, reliance on the findings of courts in antecedent proceedings does not amount to improper “bootstrapping”, but simply belies the trial judge’s assertion that no one could possibly have believed the children.

Again, this is pretty flat-footed reasoning. The point of focussing one's attention at the level of the CP in the first place is that s/he is in a position to be intimate with the volume and context of evidence, in a way that trial and appellate judges may well not see. Only at the point of a wrongful prosecution case might the full evidential state under which the CP made the decision to prosecute become known -- including, for example, the provenance of the children's testimony; in which case, appealing to the fact that other courts or judges believed the evidence as presented to them is precisely "improper bootstrapping", as the SCC's guilty conscience recognizes and attempts to fend off.

But, again, I ain't no lawyer. Maybe if some of our lawyerly types get finished ruining public health care they could weigh in.