Can prosecutors be sued?

In November the United States Supreme Court will hear Pottawattamie County et al. v. McGhee et al., a case dating back to 1978 that involves prosecutorial misconduct of the worst kind. The question for the Supreme Court is whether an innocent person wrongly convicted because of gross prosecutorial misconduct, including the withholding of evidence from the defense, may sue the prosecutors for civil rights violations.

In 1978, a retired Iowa police officer was killed while working as an off-duty security guard. Prosecutors in Iowa, working with police, manufactured evidence against the two main suspects. Both were convicted of murder and sentenced to life without parole, but a subsequent investigation in the 1990s revealed the misconduct.

The Iowa Supreme Court set aside both convictions in 2003, after the men had served 25 years for crimes they did not commit. In an attempt to get something for being wrongly convicted and suffering 25 years in jail, they attempted to sue the prosecutors, alleging willful misconduct.

In a 1976 case the Supreme Court seemed to create absolute immunity for prosecutors, even those who engage in willful misconduct. The prosecutors in this case claim that government prosecutors, in effect, have the ability to lie, coerce witnesses, and make up testimony, without facing any civil liability for their actions.

If the Supreme Court buys this argument it would severely limit the remedies available to wrongfully convicted individuals.

North Carolina has had its own experience with wrongful or allegedly wrongful convictions. Darryl Hunt spent 19 years in jail for a crime he did not commit.

In another case, a three judge panel in Wake County will review Greg Taylor’s conviction for murder in 1993. In that case, another man – Craig Taylor – has confessed to the crime. No prosecutorial misconduct has been alleged in this case.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.