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Prosecutor Can Be Sued for Malice
The U.S. Supreme Court announced late Monday that it had dismissed an important pending case over prosecutorial immunity after being alerted that the dispute had been settled. The action stops in its tracks a case that could have produced a landmark decision that many believed would have reined in the longstanding tradition that prosecutors cannot be held liable for their actions as prosecutors.
The case, Pottawattamie County v. McGhee and Harrington, was brought by Curtis McGhee Jr. and Terry Harrington, who had been found guilty in the 1977 murder of John Schweer, a retired police officer in Council Bluffs, Iowa. The two, who spent 25 years in prison before being freed in 2003, sued Iowa prosecutors for violating their civil rights by falsifying evidence used against them before arrest and at trial. They were released after being able to document the actions taken by prosecutors to doctor evidence and influence testimony to point the finger at them, even though there was another suspect.
As we reported here, former Solicitor General Paul Clement, now with the Washington office of Atlanta-based King & Spalding, took on McGhee and Harrington as clients after the Supreme Court agreed to hear the county’s challenge of a lower court decision upholding their suit. In oral arguments in November, it appeared Clement had gone a long way toward weakening the argument in favor of strict immunity for prosecutors, though the outcome was not entirely clear. Some justices appeared concerned that prosecutors would become timid if they had to worry about being sued for their actions, while other justices seemed struck by the abuses perpetrated by the prosecutors in the case.
After the arguments, settlement discussions — which had been tried on and off at earlier stages in the litigation — resumed, according to Harrington’s lawyer, J. Douglas McCalla of the Spence Law Firm of Jackson, Wyo. Though he would not say that Clement’s argument had pushed the county to seek settlement, McCalla said, “We had the wind at our back. There was a reasonable chance that the Supreme Court would see it our way.”
McCalla added, “I would have liked to see what the Supreme Court had to say about the case.” But “there are a lot of risks in that,” he added. “This is a good solution for my client.”
The parties reached a settlement on New Year’s Eve, McCalla said, with $7 million going to Harrington and $5 million going to McGhee. The prosecutors did not concede any wrongdoing, according to an account in the Daily Nonpareil newspaper of Council Bluffs. McCalla declined to say how much of the settlement would go to his firm or to McGhee’s lawyer, Stephen Davis of Canel, Davis & King in Chicago, though McCalla said they were both working on a contingency basis.
Clement handled the case pro bono. “I can’t praise Paul and King & Spalding enough,” said McCalla. Clement declined to comment.
The civil case filed by McGhee and Harrington against Council Bluffs police and the city of Council Bluffs still remains alive and could go to trial this year.