$12 Million Prevents a Supreme Court Ruling in Prosecutorial Abuse Case


Yesterday a settlement ended Pottawattamie County v. McGhee, a Supreme Court case that raised the question of when prosecutors can be held personally liable for misconduct they commit while accumulating evidence against a defendant. Terry Harrington and Curtis W. McGhee, who served 25 years for the 1978 murder of a retired police officer before being released, sued Dave Richter and Joseph Hrvol, the Pottawattamie County, Iowa, prosecutors who sent them to prison, accusing them of fabricating evidence, coercing witnesses, and hiding exculpatory evidence. The issue before the Court, which heard the case in November, was whether Richter and Hrvol committed these abuses in their roles as prosecutors, in which case longstanding precedent would make them immune from lawsuits, or in their roles as investigators, in which case they could be held personally liable. The $12 million settlement by the prosecutors and the county suggests they feared the Court would reach the latter conclusion.

Radley Balko discussed the case here and here.

[Thanks to Mark Lambert for the tip.]

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  1. Surprise, surprise.

    You want to make America a better place, or 12 million dollars? That’s a lot of money. What’s the odds he’ll be broke and deep in debt within 5 years.

    Maybe 12 million was the amount the hitman wanted to take care of all involved.

  2. Since there’s no functioning criminal law against prosecutors’ fabricating evidence, coercing witnesses and hiding exculpatory evidence, and counties will pay big to prevent the accidental establishment of any civil-law precedents, might as well take the cash.

    And yeah, hire some hitmen. You can get maybe five real pros for that much.

    Or blow it all on whores and coke and Maserati smash-up derbies, then go out Scarface/Columbine combo style at the courthouse. That’d be about 25 years of make-up livin’.

  3. I’d take the money too. I’ve given up believing that courts provide real justice to people in this country.

    1. What percentage of this settlement will be taxed? 0%? I have no idea.

    2. Apparently the prosecutors and the county haven’t given up believing that. $12 million isn’t an amount of money that you give up when you’re sure you’ll win.

      1. Aren’t they required to take the settlement? Judicial economy and all that?

        1. I’ll be the first to admit that I know little about the mechinations of the SCOTUS, but I assumed that when a case is accepted for review by the court it is because the case has significant general implications for society as a whole and the particular case being reviewed is merely a means to evaluate a legal princicple and to set legal precedent. That being the case, it would seem to me that having an out of court settlement would be incidental to the purpose of having the hearing.

          Wasn’t the purpose of bringing this case to the court to challenge the idea of prosecutorial immunity? While the particular case may have been settled, clearly nothing in the law has been. Is it not possible for the lawyers involved to continue to present some sort of a case challenging blanket immunity in general? Isn’t that the sort of thing the SCOTUS is supposed to be about?

  4. The $12 million settlement by the prosecutors and taxpayers of the county suggests they feared the Court would reach the latter conclusion.

    I mean, if we’re counting who actually gets their wallets emptied. . . .

    I’d love to know how much the prosecutors are chipping in out of their own pocket. I have a pretty good idea, of course.

    1. Exactly. This is a huge loss for Justice. Get caught fabricating evidence in order to put a man you know is innocent behind bars? That’s OK, the taxpayers will cover it.

      1. That’s why there needs to be personal accountability. Or do professional ethics mean nothing?

        1. Many in the founding generation warned of this. That is why they argued that public sector sub-humans should face ruinous damages for messin’ with anybody’s rights under the color of law.

          Its also why Pierson v. Ray is bs.

    2. If the citizens of the county don’t like paying much of the bill, they should make an issue out of it.

      Is that crickets I hear?

  5. Take $11 million and the public admissions of guilt of those involved. Yeah, that means possible disbarment, but tough shit.

  6. I hope the taxpayers riot, and storm the courthouse (or wherever these assholes’ offices are).

    1. Not gonna happen.

      My bet is that the taxpayers will blame the justice system for giving a criminal money. They won’t fault the system, they will fault the idea that a criminal does 25 years and walks out with a big time paycheck.

  7. Justice failed when these fuckers didn’t face exactly the same punishment as you or I would face if we had locked the victims in our basements for 25 years.

    1. Color of authority. The sentences should be longer.

  8. If only someone had the courage to administer justice…

  9. “…and taxpayers…”

    The taxpayers elected these yokels to the prosecutors office. If the taxpayers were individually assessed for their share of the settlement they might vet their candidates a little more thoroughly the next time they go to vote.

  10. A professional engineer designs a building, in good faith, however incompetently, that collapses and kills several people, and he loses his license and is subject to severe civil liability, and usually criminal negligence charges.

    These fuckers deliberately falsify and fabricate evidence to put an innocent man in prison for decades and they get a taxpayer-funded bailout, keep their jobs, and get promoted.

    Justice is dead in this country.

  11. “…That’s why there needs to be personal accountability. Or do professional ethics mean nothing?..”

    Really? Ethics? Did anyone mention that these people are lawyers, prosecutors and judges – LAWYERS!

    Anyone who would fabricate evidence to send someone to jail for 25 years who was not guilty of a crime should be “shot”. Is that too harsh a punishment?

  12. I’m surprised nobody has mentioned Nifong when it comes to prosecutorial misconduct.

  13. How come every other job in the world, even doctors, even public defenders, can be sued for doing a terrible job or trying to take away your rights. But politicians and police and prosecutors cannot? What makes them special?

  14. This case and this result were, apparently, dreadful, but these tirades about prosecutors get a little old. I spent 25 years as a prosecutor watching defense attorneys file bogus ethics complaints against my colleagues to force policy changes favoring the guilty. Not one – repeat, not one – was sustained.

    We handled 100 felony cases a year. The public defenders handled fewer than half that. I don’t recall ever being pressured, or pressuring, to get a conviction in a particular case, nor was anyone ever disciplined or penalized for losing a case.

    There are rarities like Nifong, who are malignancies in the system. But prosecutors are overwhelmingly committed to justice and public safety and work at it for far less money than alternate career choices would provide.

    1. Serial killers are also rare malignancies, but that doesn’t mean you neglect to punish them where and when they crop up.

      Doctors are overwhelmingly committed to saving lives and improving the well-being of their patients. Then you have Harold Shipman. The fact that he was a doctor didn’t save him from being sent to prison as a serial killer. Neither should prosecutors or other law enforcement agents be immune to the laws that they themselves are sworn to uphold. As a legal scholar, you are surely aware of the significance of the Magna Carta.

      Criminals who operate under the colour of law should be subject to the same penalties as any other criminal. That is what is at issue here, not how rare these criminals are.

      1. Actually I think if a person in a position of authority in the government abuses their position to the detriment of the public, they should be punished severely – more severely than any other criminal. Betrayal of the public trust should be a serious crime.

      2. Actually, what’s at issue here would be the consequences to the public, not to errant prosecutors, of eliminating prosecutorial immunity.

        You might want to consider the potential impact of opening up the conduct and decisions of prosecutors to harassment by litigation. Sometimes the narrow “should be” of a situation is outweighed by other factors – here, public safety. That’s why prosecutorial immunity exists, not because its original purveyors were short-sighted.

        Of course, if you think potentially errant prosecutors equate to serial killers, the issue may be a difficult one for you.

        1. Nonsense, Hombre. Think of the lives that dishonest (errant suggests that they just made a few mistakes) prosecutors have destroyed. You think it’s not as bad as a serial killer? Really? Would you have said the same thing if either Harrington or McGhee had been murdered in prison? Did they have kids? What happened to them? Did they have wives? What happened to them?

          And let us not forget an equally vulgar crime committed by these two pubic [sic] servants. The real killer or killers of the police officer is still out there someplace. Has he killed again? How many times?

          Serial killers from what I’ve read have some sort of serious mental problem, and are essentially nuts. How do you equate the actions of a prosecutor with a chip on their shoulder who simply strokes their own ego and doesn’t give a damn whose lives they destroy?

          For me, Nifong got off WAY too easy. And these two clowns Richter and Hrvol did as well. If it were up to me their lives would be completely destroyed, and they would be forced to serve one day in prison for every day a wrongly convicted citizen spent, particularly if they withheld exculpatory evidence.

          Then maybe they’d understand exactly how equivalent to a serial killer they truly are. I weep only for the citizens who have to pay the bill, and for Harrington and McGhee.

        2. The conduct and decisions of prosecutors should be a matter of public record. If the actions of a prosecutor will not stand up to scrutiny then he or she should be subject disciplinary action up to and including criminal charges. The simple solution for prosecutors is to hold themselves to an unimpeachable standard of integrity. If they cannot do that, then maybe they should consider another profession. The impact on public safety of a rogue agent of the state is at least as dire as the threat posed by criminals who do not act under the colour of law.

          Civil liability is not the same thing as criminal liability. Prosecutors WHO ACT IN GOOD FAITH should not be subject to civil litigation for doing their jobs, even if an innocent person is sent to prison. If the prosecutor acted in good faith based upon the entirety of the evidence available, then they cannot be held accountable for the imperfections of the legal system of which they are only one part. Prosecutors who break the law on the other hand should be subject to its penalties. Equality before the law is the cornerstone of the American legal system. If prosecutors are exempt from that then I see no reason why they should not also be excluded from the rights and freedoms that the rest of us enjoy as citizens. You can’t have your cake and eat it too.

          Prosecutors who act in good faith should be protected from barratry, but they should not be shielded from punishment when they themselves act as criminals.

  15. “How come every other job in the world, even doctors, even public defenders, can be sued for doing a terrible job or trying to take away your rights. But politicians and police and prosecutors cannot? What makes them special?”

    Simple: they get to make (and enforce, and interpret) the rules.

  16. Hombre,

    You should look up “no dope dope prosecutions”.

    Here is a start:

    Unfortunately in DEA and other Federal agencies where agents are trained to be duplicitous to begin with and then exposed to deceitful, lying, scumbag politicians and bureaucrats who want results that make them look good and don’t give a darn how you get them as long as you don’t embarrass them by getting caught there were agents who would bend the facts in their own favor.

  17. If that happened to me I’d make it my life’s work to destroy those scum, one way or another.

  18. This is a good time to remind everyone of all the reasons you should NEVER allow yourself to be questioned by law enforcement types:

  19. Hombre,
    If out of control prosecutors are truly “rarities in the system”, then the majority of prosecutors who are “committed to justice and public safety” should welcome and encourage efforts to hold the rare bad apples accountable. Prosecutors are, to my knowledge, the only licensed professionals who can get caught violating their own professional code of ethics and not face appropriate civil or criminal penalties (and, no, the vanishingly small chance of getting sanctioned by the bar, or even more rarely, disbarred, doesn’t count.) Prosecutors know that, and thus have no incentive to play fair with the law or with the truth.

    I suspect that one of the reasons people engage in these “tirades” is that they see prosecutors such as Nifong, Hrvol and Richter use the power of the state deliberately and maliciously and then hiding behind that same state power when they get caught. Its reprehensible, and whether its common or not, there need to be significant penalties when it happens, both out of a sense of justice and pour encourage les autres. Anything else makes a mockery of justice.

    I eagerly await your advocating for changes to the law to make it possible to penalize prosecutors for deliberate ethics violations, and your encouraging other prosecutors to do the same – or do you think that its fine that scum like Richter and Hrvol continue to get to hide behind the law after ruining several lives?

    1. @Alphageek: You have no idea what you are talking about. Prosecutors are already subject to penalties for ethical violations, including disbarment.

      It is unfortunate that our schools give short shrift to civics these days. Isn’t it obvious what would happen if prosecutors – and there would be no reason to exclude judges either – no longer had immunity for actions taken within their official capacity? Would we be served by an environment where the prosecutor’s need to cover his a– colored his judgment? Do you trust defense and personal injury lawyers to take action only when there is good cause?

      I guess you believe that defendants already have so few rights and the criminal justice system is working so well to control crime that a few more impediments to prosecution won’t hurt society. Right?

      1. That sentence should read: Do you trust defense and personal injury lawyers to take action [against prosecutors or judges] only when there is good cause?

      2. I think that so long as the burden of proof is on the crooked defense attorneys to prove that the crooked prosecutors were fabricating evidence, I could live with that.

        Fabricating evidence is bad, you see, and I hardly think that disbarring a prosecutor ten years after he retires is a sufficient deterrent.

      3. Schools give short shrift to ethics?

        Law school is not the time and place to learn the difference between right and wrong. You can’t blame the law school a lawyer or judge went to for their lack of integrity.

        Legal professionals who commit crimes in the course of carrying out their duties should be subject to the same penalties as any other criminal. This includes judges and anyone else who acts in an official capacity.

        The effect upon society would be a legal system that is more honest than the one we have today. The purpose of the criminal justice system is not merely to punish the guilty. It must also protect the innocent. Otherwise it has no validity and is merely an instrument of tyranny that should be fought and opposed at every turn. Why should I provide evidence to the police when I have no reason to believe that evidence will be examined honestly?

        If the legal system is nothing more than a mechanism for finding the most convenient scapegoat in order to maintain the illusion of justice, then I refuse to cooperate with it. I will not be a party to someone being railroaded because they were the easiest mark to pin something on.

      4. The issue in this case is, do prosecutors have a right to frame individuals with false evidence? The question now remains unanswered. Any defense for prosecutors based on ad hominem augment is weak minded rhetoric. Gonzales v. Castle Rock slapped the U.S. Citizens in the face with the realization that they “have no constitutional right to be protected?” from crime. Yet immunity gives all officials a constitutional right to be corrupt. Obviously, this could not happen in a democracy! It is ludicrous to think otherwise.

  20. This type of case intrigued me as a crime victim poking around in the mechanics of justice. I had no idea about the abuses of immunity that have destroyed the lives of many. I come from a non typical school of point of view. I am not an accused criminal alleging official misconduct. I along with my wife, dialed 911 to report a crime. From what I know now, I can’t in good conscience report crime again. I just can’t afford it! Unfortunately for us, this person we reported was connected to a campaigning DA who reversed 4 docketed trials against their “friend” when he was elected, as stated he would do, enraging the victims.

    So far, reacting to our complaints, a Judge was found guilty of wrong doing by the state CJP. A Sheriff is stepping down prior to election, and a BOS was discovered committing fraud to cover this up by her political party. She was later arrested on unrelated charges. As a self represented Plaintiff in federal court immunity issues have come up. Defendants 3 separate counsels defense is, “so what we are immune [short paraphrase].” Legislative immunity is abrogated for “Ad Hoc” legislation that does not affect public policy, and Monell Liability of unlawful policy to deprive rights under color of law, abrogates immunity. The 3 separate defense counsels argued for a “dismissal hearing,” but did not provide controlling law. The hearing was vacated as requested by us Plaintiffs. Due to the CJP decision to take “corrective action” against this local good ole boy felony fixing judge, “plausibility” of our allegations should be viewed more objectively. Up until now, you would think we were Al Quida for holding our officials accountable. By the way citizens, you do not have constitutional rights, contrary to popular belief, because they are not enforced! In Pottowattamie, the man served 25 years in prison for Christ sake and Scotus doesn’t want to muddy the waters for prosecutors who have a constitutional right to be corrupt, where citizens have no rights to be protected from any crime! We are crime victims, a new trend in civil right violations probably due to Gonzales v. Castle Rock, and this Pottawattamie case. I wonder if this still leaves the door open for them to “frame” accused criminals due to the “clearly established law” doctrine.

  21. District Attorneys, prosecutors, and law enforcement officials who participate in such frauds are worse than the worst criminals — they are abusing their positions and power to victimize the powerless in order to further their own careers. There should be NO immunity. At a minimum, each and every such public official who knowingly causes innocent people to be convicted should serve the time (combined) of the people they framed.
    Our public servants should be just that — servants, not masters. They are not above the law, but should in fact hold themselves, and be held, to a higher standard.

  22. I am VERY shocked at the comments that have been left on this blog…to think that some of you can be so IGNORANT with your views on this issue…DID WE ALL NOT READ THAT HE WAS SENTENCED TO LIFE IN PRISON AT THE AGE OF 17 for a crime that he did not commit!!! to state that he would be broke in five years or addicted to drugs is so hurtful and shameful to hear… How many of you have lost 25 YEARS of your life? and seriously he has been out for six years and seems to have his head on his shoulders. I would just like to state that he has a praying family who would never allow him to fall…and if you really followed the case there were other parties that were not even followed up on that did not have alibi’s…lets not forget that this is a white america and the young black men that they selected to take the fall for this crime NEVER had a chance. They were guilty when Pottawattamie decided that they needed to blame someone and solve the case. I am not racist by any means and I am not trying to use the race card as a crutch I am simply saying that in this case that played a HUGE ROLL…I am saddened by what the officer’s family has had to go through and we need to find his killer because he/she has been living free for the last 25 years.

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