Last month, the Supreme Court heard argument in an interesting and important case that will define the limits of prosecutoral immunity. In Pottawattamie County v. McGhee, the Court heard argument in November regarding this issue: Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial. Gerry Spence was among counsel who represent the Respondents who were wrongfully charged and convicted of killing a police officer. The men spent more than twenty years in prison. The men were convicted based upon the testimony of an informant who was promised leniency for his testimony. Police and prosecutors were apparently aware of the fabricated testimony yet nevertheless hid exculpatory evidence. Once the evidence was discovered twenty years later in a post conviction habeas proceeding, the prosecutor assigned to the case lied to one of the wrongfully convicted men in order to continue the charade of the retrial.
The case presents interesting issues on the pitfalls of using informants and whether there should be some responsibility put on the police and prosecutors who use them.