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Justice for framed men

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The Tampa Tribune

Published: November 7, 2009

Terry Harrington and Curtis McGhee were teenagers when, they say, prosecutors and police framed them for a murder they almost certainly didn't commit.

An all-white jury convicted the men, both black, of killing a retired Iowa police captain, and they spent the next 25 years in prison before new evidence, long hidden in police files, helped to free them.

Now they want justice for their unjust prosecution in Council Bluffs, Iowa, and they deserve the chance to sue the prosecutors who put them away.

Trouble is, prosecutors generally have absolute immunity from civil liability for their actions at trial. And now it's up to the U.S. Supreme Court to decide whether that immunity extends to the actions of prosecutors before trial, during the investigative phase of a case. The court should abandon absolute immunity for prosecutors who demonstrably violate an established constitutional right.

But the Obama administration, 27 states and prosecutors organizations across the country say it doesn't matter whether they were framed because "absolute immunity reflects a policy judgment that such conduct is properly addressed not through civil liability, but through a host of other deterrents and punishments."

It's true there are good reasons for offering prosecutors immunity: It's possible that without it anyone who thinks he was wrongfully convicted would sue. And prosecutors may be more tentative in working with police and making decisions to prosecute.

But immunity should not enable prosecutors to break the law.

Prosecutors have the advantage over defendants, and it is fundamentally unfair – indeed a violation of due process – to use that advantage to frame a person and score the evidence to convict.
The prosecutors have not admitted wrongdoing. Whether they are guilty doesn't matter, they say, because they have immunity.

But for McGhee and Harrington, it does matter. The law must not be read to mean the more deeply you're involved in the wrong, the more likely you are to be immune. That, as Justice Anthony Kennedy said, would be a strange proposition.

Prosecutors should be protected if they conduct cases in good faith. A qualified immunity would offer that protection.

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