Friday, January 31, 2014

Seventh Circuit Rules Prosecutor Can Be Sued For Abusive Investigation and Misconduct

In an important decision on immunity, the United States Court of Appeal for the Seventh Circuit has ruled that a prosecutor is not protected by immunity for allegedly coercing false testimony that sent a man to death row 17 years ago.

Despite the U.S. Supreme Court's 2011 ruling in Connick v. Thompson broadly expanding immunity for prosecutors, the Seventh Circuit has affirmed that there are instances when prosecutors should be held civilly liable for their intentional misconduct.

Professor and legal commentator Jonathan Turley reported about the two prosecutors who were accused of misconduct in Fields v. Wharrie. Nathson Fields was convicted of a 1986 double homicide and sentenced to death, but he was granted a new trial a decade later because the original trial judge said he accepted a $10,000 bribe to acquit Fields' co-defendant, Earl Hawkins. After various witnesses recanted their testimony at the second trial and it was revealed that the prosecution used coercion to secure false testimony, Fields was acquitted. He sued prosecutors Lawrence Wharrie and David Kelley for his then 17 years of incarceration, but they insisted that they had immunity, and the district court agreed. The Court of Appeals for the Seventh Circuit reversed, stripping Wharrie of immunity.

Writing for the Seventh Circuit panel majority, legal theorist and judge, Richard Posner, said it would be absurd to allow such prosecutors to claim immunity. He writes:

"Wharrie is asking us to bless a breathtaking injustice. Prosecutor, acting pre-prosecution as an investigator, fabricates evidence and introduces the fabricated evidence at trial. The innocent victim of the fabrication is prosecuted and convicted and sent to prison for 17 years. On Wharrie's interpretation of our decision in Buckley, the prosecutor is insulated from liability because his fabrication did not cause the defendant's conviction, and by the time that same prosecutor got around to violating the defendant's right he was absolutely immunized. So: grave misconduct by the government's lawyer at a time where he was not shielded by absolute immunity; no remedy whatsoever for the hapless victim."

Read the opinion:  http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D01-23/C:13-1195:J:Posner:aut:T:fnOp:N:1278458:S:0

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