Seventh Circuit Rules Prosecutor Can Be Sued For Abusive Investigation and Misconduct

posnerUS-CourtOfAppeals-7thCircuit-SealIn 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

47 thoughts on “Seventh Circuit Rules Prosecutor Can Be Sued For Abusive Investigation and Misconduct”

  1. We are going on the right direction to make changes in our Legal System. No more Wronful Convictions and No More Corrupted Prosecutors. The Fight for Justice will continue and there is no end until We All United enforced Changes in Criminal Law and Inmunity for Prosecutors.

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  3. Hear, hear, JMRJ!

    The decision is only a sliver of hope, however. It amazes me the extent some prosecutors go to in order to convict. I understand the federal level is even more egregious, where protecting the high conviction rate is the main focus. Justice takes a back seat at both levels all too often.

  4. Matt;

    It is “outside” the box thinking (Ethics, Codes & Rules of Law) that has fostered the bad faith haughtier to entrench itself and grow – to begin with.

    Our systems – which are suppose to be “separate” checks and balances – is already skewed with POTUS handpicking the USAG.

    From there – downward – a spiral begins. (Such as Circuit Court’s picking bankruptcy justices), Federal Receiver’s getting “judicial immunity” and Chris Christie giving out $50 Million NO Bid DPA (deferred prosecution agreements) to the former USAG Ashcroft.

    Obviously, you as a prosecutor, has never had to endure LAS (Legal Abuse Syndrome). But those of U.S. who have been yoked with the burdens of tyranny, cronyism and corruption are far more entitled to an OPEN/ Regular Court – right to redress grievances

    than your “outside the box” systems of entrenched power would ever permit!

    I’ve got confessions to intentional fraud on the court in our case;
    and the judge said she doesn’t care – has to get back to Tweeter.
    (kid you not – it is a transcript record).

    Do you really believe you can argue that – in the interest of justice – protocols to protect public servants, should be beyond those that protect its citizens?


  5. Courts must balance ability for prosecutor to proceed without fear of litigation with rights of citizens to be free from vindictively wrong prosecutions. It is a difficult line.
    As a former prosecutor I could not have done my job without such immunity. I did not have to look over my shoulder at each decision I made. It is for that reason we accord such immunity to judges. However, I agree that in the most egregious cases a wrongfully prosecuted individual must have some recourse. Perhaps there should be a requirement such suits pass a certain scrutiny before they can be filed. Judges should think outside the box when considering this.

    1. Matt, interesting perspective. Of course I disagree entirely.

      In the first place, all your wrongs are covered by insurance and/or government coffers, so why should the risk of being sued bother you any more than it would bother other people with grave responsibilities? Like defense lawyers for example.

      Second, you might appreciate that from my perspective prosecutors and judges need to do a lot more looking over their shoulders, not less. Second guessing yourself on whether to prosecute a case is a good thing, not a bad thing. It’s a fateful decision for your target, and prosecutorial circumspection should be the norm. This is why prosecutorial discretion is acknowledged and respected. You are expected to be circumspect in your decisions.

      Third, it is already extremely difficult to win cases against prosecutors and/or police, whether for damages or even when they are prosecuted criminally by the feds. I don’t see how it’s right to stack the deck even higher with all the immunity.

      Not to mention that the immunity jurisprudence is becoming pretty much incoherent.

      Not to mention that other remedies as noted in Imbler v. Pachtman are a dismal failure. Rogue prosecutors not only routinely evade discipline; they get promotions, become judges. Whereas their victims suffer terribly. For years. Often forever.

      Not to mention that the prospect of misconduct becoming expensive for insurance companies and governments is probably the only effective way to deter it. I mean, this is the social rationale for the entire law of torts. Why should official torts get a pass?

      I realize prosecutorial immunity is with us and probably will remain. But it’s wrong. And it’s a failure for our system.

    2. Try permanent removal from role of attorneys + prison „ in addition to exemplary damages .

        Docile Jim Brady Nemo Me Impune Lacessit Columbus  OH  USA

      >________________________________ > From: JONATHAN TURLEY >To: >Sent: Thursday, January 30, 2014 11:37 AM >Subject: [New comment] Seventh Circuit Rules Prosecutor Can Be Sued For Abusive Investigation and Misconduct > > > > >Matt Connolly commented: “Courts must balance ability for prosecutor to proceed without fear of litigation with rights of citizens to be free from vindictively wrong prosecutions. It is a difficult line. As a former prosecutor I could not have done my job without such immunity. ” >

  6. Laser and BD,

    Seeger was truly a great inspiration to the American society as a whole…. Woodie Guthrie in my opinion was equally influential….. The dust bowl ballads still resonate…..

  7. Pete Seeger – obviously is – a true red, white and blue American hero.

    Here’s what a FB friend of mine (Marge “MaggieJean” Foulks) put up on my timeline from Mr. Seeger’s profound statement in 1955, before the House Un-American Activities Committee.

    To wit;

    “I love my country very clearly,

    and I greatly resent this implication that some of the places that I have sung and some of the people that I have known, and some of my opinions, whether they are religious and/or phisosophical, or I might be a vegetarian,

    makes me any less of an American.

    We just lost one of our national treasures

    And I missed him – ENTIRELY


  8. Regarding Pete Seeger. I Googled his name and came up with a slew of things to open up. There are three newspaper articles at lease: NY Times, LA Times and The Guardian (it figures that they would cover him). Some of the sites you open up will play the music. Amy Goodman devoted an entire hour on Tuesday to Pete and replayed an interview with Pete from 2004. I was privileged to hear him play live several times in life. One of the best was at the May Day Tribe demonstrations in May 1971 in DC. I saw him get gassed and busted too.

    Where Have All The Flowers Gone is a great tribute to Pete. You can find it on the web and watch him sing it. Peter Paul and Mary sing that song too. Pete also revised from previous songs and lyrics We Shall Overcome.

    In the McCarthy Hearings in the fifties he was subpoenaed to Congress and he took The First Amendment. He got convicted of some crap charge regarding failure to testify and it got over turned on appeal. He was Blacklisted. Apparently Google news and Yahoo News follow the Blacklist to this day.

  9. BarkinDog,

    You see why he’s not getting any press for his formative efforts….. He’s white and privileged….. White men just don’t understand it from a black persons perspective…… Pete Seeger was a hero of mine….. He was a great musician… That stood up for the common man….. Saw a interview of him and a very young Charlie Rose….

  10. Pete Seeger was prominent at the May Day Tribe demonstrations in DC in May 1971. I was there back when I was a human in a prior life. I watched him get busted and teargased. Great man.

  11. This is off topic. But a big topic it should be on this blog. Pete Seeger influenced civil rights in this country as much as any other single person in the nineteen sixties onward. He died Monday. Neither Yahoo or Google News will post news of his demise. He is still on the Blacklist from the McCarthy Era. Here is a snippet from Wikipedia:

    Peter “Pete” Seeger (May 3, 1919 – January 27, 2014) was an American folk singer. A fixture on nationwide radio in the 1940s, he also had a string of hit records during the early 1950s as a member of the Weavers, most notably their recording of Lead Belly’s “Goodnight, Irene”, which topped the charts for 13 weeks in 1950. Members of the Weavers were blacklisted during the McCarthy Era. In the 1960s, he re-emerged on the public scene as a prominent singer of protest music in support of international disarmament, civil rights, counterculture and environmental causes.

    A prolific songwriter, his best-known songs include “Where Have All the Flowers Gone?” (with Joe Hickerson), “If I Had a Hammer (The Hammer Song)” (with Lee Hays of the Weavers), and “Turn! Turn! Turn!” (lyrics adapted from Ecclesiastes), which have been recorded by many artists both in and outside the folk revival movement and are sung throughout the world. “Flowers” was a hit recording for the Kingston Trio (1962); Marlene Dietrich, who recorded it in English, German and French (1962); and Johnny Rivers (1965). “If I Had a Hammer” was a hit for Peter, Paul & Mary (1962) and Trini Lopez (1963), while the Byrds had a number one hit with “Turn! Turn! Turn!” in 1965.

    Seeger was one of the folksingers most responsible for popularizing the spiritual “We Shall Overcome” (also recorded by Joan Baez and many other singer-activists) that became the acknowledged anthem of the 1960s American Civil Rights Movement, soon after folk singer and activist Guy Carawan introduced it at the founding meeting of the Student Nonviolent Coordinating Committee (SNCC) in 1960. In the PBS American Masters episode “Pete Seeger: The Power of Song”, Seeger stated it was he who changed the lyric from the traditional “We will overcome” to the more singable “We shall overcome”.

  12. As one who has been dealing with tyranny, cronyism and corruption for more than a decade, I’m ecstatic about this decision as a “beginning”. G-d willing it remains intact (as – undoubtedly – there will be {if not a reconsideration en banc appeal} a most certain U.S. Sup Ct pleading {and a massive influx of amicus briefs be every other prosecutor in the nation and quite probably, the Solicitor General of the U.S.}).

    Are you paying attention USAG Eric Holder?

  13. Several tears ago , in another jurisdiction , an evil prosecutor was tried and convicted .
    His neck was not immune from the blade , which ended his evil conduct .

    Jefferson also observed of the necessity that tyrants shed several drops of blood now and then .

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