Rethinking Prosecutorial Immunity

The Court heard oral argument yesterday in Pottawattamie County v. McGhee (08-1065).  For background on the case, see my earlier preview.  Check the case page on SCOTUSwiki for updates.

The oral argument in Pottawattamie County v. McGhee was an exercise in drawing lines – between policemen and prosecutors, investigation and prosecution, and torts of constitutional and non-constitutional varieties.  The main line at issue in the case circumscribes acts that carry immunity for prosecutors.  The Court seemed inclined to draw it based on the incentives created for prosecutors and potential litigants.

Justice Stevens depicted the petitioners’ view of immunity as “a strange proposition” – and Deputy Solicitor General Neal Katyal, arguing for the United States and the petitioners, agreed it “seems a little odd.”  The idea everyone found so strange was that the closer an officer is to a wrongful conviction, the more immune she is for it.  Two hypotheticals Justices Ginsburg and Kennedy posed to Stephen Sanders – also arguing for the prosecutors – zeroed in on that strangeness: Could a policeman be held liable for fabricating evidence?  Or could a prosecutor from another case?  Sanders was forced to admit that both the policeman and the second prosecutor could be held liable, though the prosecutor of the case himself could not.

For almost twenty minutes, the Court struggled to understand how a prosecutor’s fabrication of evidence is different from a policeman’s.  On Sanders’ interpretation, the fabrication alone cannot create a constitutional harm until a prosecutor uses the evidence at trial and the trial ends in conviction.  Then the prosecutor alone seems responsible for the harm, Justice Sotomayor asserted.  If a policeman can still be responsible for fabricating evidence independent of its use at trial, then aren’t these two different acts subject to different liability?  Justice Ginsburg summed it up: “It’s strange to say a prosecutor who wasn’t involved in the trial would have liability, but as long as the prosecutor turns the investigatory material over to himself, there’s absolute immunity.”

To Katyal, Justice Breyer communicated similar frustrations with the conceptual landscape presented by Pottawattamie County.  Why can’t the entire prosecutorial act, from investigation to trial, constitute one violation but be divided for the purpose of immunity?  Katyal’s answer, which seemed to pacify Justice Breyer in part, was that the statute under which McGhee is suing – § 1983 – allows suits only for constitutional torts; and the only established constitutional right implicated is the right to a fair trial.

Former Solicitor General Paul Clement – arguing for the respondents – faced fast and tough questioning about the practical consequences of his new immunity rule.  The Justices seemed openly reluctant to undermine the rule of absolute prosecutorial immunity for fear of “chilling” prosecutors from performing critical duties.  Justice Breyer worried a new pre-trial liability would discourage prosecutors from questioning witnesses.  He dismissed as less important Clement’s counter-claim that immunity for all acts that contribute to a trial would give malicious prosecutors an incentive to use ill-gotten evidence in court.

Building on that line of questioning, Justices Alito and Scalia, in particular, worried that frivolous charges against prosecutors might become easier to allege if McGhee wins.  Justice Alito painted a picture of the criminal justice system in which many witnesses are unreliable – like, he asked in a hypothetical, when a CFO insists no wrong was done at a corporation and then turns to testify against the CEO – and therefore easy game for angry defendants alleging their prosecutor knowingly used false testimony.  Scalia added that an acquittal would add more evidence that the testimony was unreliable.  The defense Clement set up was that past rulings making suits  against prosecutors easier to allege have not actually flooded courts with claims.

Clement further  argued that fabricating evidence before trial is a violation of the constitutional right to a fair trial – merely an incomplete one.  But Justice Breyer pressed Clement to give a clear line up until which prosecutors could be held liable.  He reluctantly committed to one: a prosecutor would be liable for investigatory acts until he found uncontrived probable cause to proceed with a trial.

That was perhaps the brightest line drawn during the oral argument.  Wherever the Court ultimately draws the line on prosecutorial immunity, it seems clear they will be looking forward to its practical consequences.