In an important decision on immunity, the United States Court of Appeal for the Seventh Circuit has ruled that a prosecutor is not protected by immunity for allegedly coercing false testimony that sent a man to death row 17 years ago. Two prosecutors were accused of egregious misconduct: Lawrence Wharrie and David Kelley. The new opinion from the Seventh Circuit is Fields v. Wharrie, 2014 U.S. App. LEXIS 1333. Ironically, I just filed on qualified immunity this week in the ongoing litigation in the Sister Wives case in Utah. We are advancing some of the same arguments, though our case has distinguishable characteristics. However, today we filed the Fields case as new supplemental authority.

The case involved the conviction in 1986 of street-gang member Nathson Fields for two murders. He was sentenced to death but granted a new trial in 1996 (I will just note that for those who complain of the long appeals in these cases, this is an example of how those appeals reveal fundamental wrongdoing and injustice ten years later). The new trail was based on the disclosure that the trial judge, Thomas Maloney, had accepted a $10,000 bribe from Fields’ co-defendant, Earl Hawkins, for his own acquittal. Maloney — showing a misplaced or belated form of honesty — later returned the money after Hawkins’ conviction (and disclosure of a federal investigation).

The second trial resulted in the acquittal of Fields after various witnesses recanted their testimony. That trial revealed misconduct and coercion by the prosecution to secure false testimony. Fields then sued Lawrence Wharrie and David Kelley for his then 17 years of incarceration. The prosecutors insisted that they had immunity and the district court agreed. However, later on reconsideration, the court stripped Wharrie of qualified immunity for his role in the investigation.

The matter went to a Seventh Circuit panel, which included conservative icon, Richard Posner. Writing for the majority, Posner held that it would be absurd to allow such prosecutors to claim immunity in such cases. Posner writes with his usual clarity and with some passion in rejecting immunity in a case of prosecutorial immunity:

Wharrie is asking us to bless a breathtaking injustice. Prosecutor, acting pre-prosecution as an investigator, fabricates evidence and introduces the fabricated evidence at trial. The innocent victim of the fabrication is prosecuted and convicted and sent to prison for 17 years. On Wharrie’s interpretation of our decision in Buckley, the prosecutor is insulated from liability because his fabrication did not cause the defendant’s conviction, and by the time that same prosecutor got around to violating the defendant’s right he was absolutely immunized. So: grave misconduct by the government’s lawyer at a time where he was not shielded by absolute immunity; no remedy whatsoever for the hapless victim.

In discussing the Supreme Court’s 1993 decision in Buckley v. Fitzsimmons, 509 U.S. 259 (1993), Posner added that “A prosecutor may not shield his investigative work with the aegis of absolute immunity merely because, after a suspect is eventually arrested, indicted, and tried, that work may be retrospectively described as ‘preparation’ for a possible trial; every prosecutor might then shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial.”

The “breathtaking injustice” described by Posner however was not enough for Judge Diane Sykes who wanted to extend immunity to the prosecutor.

Putting aside Sykes’ dissent, many will likely find it surprising that a prosecutor still has immunity for outrageous acts like coercion and soliciting false testimony if it occurs at trial. I have long had difficulty with that shield of immunity in cases of knowing abuses, but this case reaffirms an important protection for pre-trial conduct.

You can access the opinion: here