In a landmark decision, the U.S. Court of Appeals for the 7th Circuit has ruled that a prosecutor does not have absolute immunity.  In this case, the prosecutor is not protected because they allegedly coerced false testimony that sent a man to death row.

Two prosecutors are accused of unconscionable misconduct:  Lawrence Wharrie and David Kelley.  The new opinion from the appeals court in Fields v. Wharrie is about the 1986 conviction of Nathson Fields for a double murder.  He was sentenced to die, but was granted a new trial 10 years later.  The new trial ruling was based upon the discovery that the original trial judge, Thomas Maloney, received a $10,000 bribe from Fields’ co-defendant, Earl Hawkins, to acquit Hawkins.  Maloney later returned the bribe after Hawkins’ was convicted.

The second trial resulted in the acquittal of Fields after several prosecution witnesses recanted their original testimony.  The second trial also revealed misconduct and coercion by prosecutors to secure false testimony.  Fields then sued Wharrie and Kelley for his 17 years of wrongful incarceration.

The prosecutors insisted that the lawsuits should be dismissed because they have immunity from civil suits.  The state court agreed.  Later, after a motion for reconsideration, the court reversed its own decision and stripped Wharrie of qualified immunity for his role.  The prosecutors appealed and the matter went to the federal appeals court, the 7th Circuit.  They concluded that it would be absurd to allow prosecutors to claim immunity when they acted improperly on purpose.  

Judge Richard Posner wrote for the majority:

“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…no remedy whatsoever for the…victim.”

Posner added, citing the Supreme Court’s 1993 Buckley v. Fitzsimmons decision, that “a prosecutor may not shield his investigative work with…absolute immunity merely because…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” of purposeful prosecutorial misconduct was not enough for appellate judge Diane Sykes who writing for the minority opinion wanted to extend immunity to the two prosecutors.  Many may find it surprising that some legal authorities still want to protect and can in most instances protect prosecutors who knowingly abuse public trust, but it is a fact that the shield of immunity can and does cover misconduct, including soliciting false testimony.  This case is one step closer to consistently enforcing ethical behaviors on all prosecutors whether it is pre-trial conduct, during trial, or post-trial.

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