Constitutional Right Not to Be Framed?

[Robert Sheridan]

I appreciate the thoughtful and informative responses.

Nevertheless, isn't there anything the Court can do to address the 
question posed by Harrington and McGhee, assuming that their premise is 
correct, that prosecutor and police conspired to frame them?

Is the Court to throw up its hands and say, in effect, that in order to 
make this wonderful omelet that we call criminal justice in general, we 
must break a few eggs in the form of  tolerating intentionally wrongful 
convictions of the innocent?

I don't know why I'm having such trouble with this.

It must be me.

rs

Rosenthal, Lawrence wrote:
> I filed an amicus group on behalf of a number of state and local governmental amici in Pottawattamie County v. McGhee, so I suppose I am something of a partisan in this debate.  I will add a few thoughts nevertheless.  
>  
> First, permit me a slight correction to Professor Renz's post.  In fact, a prosecutor enjoys absolute immunity even for knowingly eliciting false testimony.  That is the holding in Imbler v. Pachtman, 424 U.S. 409 (1976).  Kalina adds only that when a prosecutor goes beyond his role as advocate and executes an affidavit in support of an application for a warrant, the prosecutor does not enjoy prosecutorial immunity on a Fourth Amendment claim arising from the execution of the warrant because the prosecutor has acted as a witness, not a lawyer.
>  
> As for the scope of immunity, in Buckley v. Fitzsimmons, 509 U.S. 259 (1993), the Court seemed to hold that when they act as investigators prior to charging and the absence of probable cause, prosecutors are not entitled to absolute immunity.  On that basis, the court of appeals held in this case that allegations that during the investigative stage, prosecutors effectively suborned perjury in order to frame two suspects were not protected by absolute prosecutorial immunity, and amounted to a due process violation for which damages were available under section 1983.  As long as Buckley remains the law, it seems plain that the prosecutors lack absolute immunity in this case because they have been sued for their conduct during the investigative stage (although my clients ask the Court to limit or overrule Buckley).  The remaining question, however, is whether prosecutorial misconduct prior to charging amounts to a constitutional violation.  The argument of the petitioners in this case is that an essential element of a due process violation is a deprivation of liberty (or life, or property), and that did not occur until the prosecutors elected to file charges, resulting in pretrial and eventually post-conviction incarceration (until the criminal defendants turned civil plaintiffs were exonerated).  The decision to file charges, however, is protected by prosecutorial immunity.  Thus, petitioners argue, an essential element of any due process claim requires proof of an immunized act (charging), and for that reason is barred by immunity.  In other words, what prosecutors do in the investigative stage and prior to charging may not be protected by prosecutorial immunity, but it also cannot amount to a due process violation because prior to charging, there is no deprivation of liberty that is the necessary trigger for any due process claim.
>  
> Respondents seem not to be pressing any Fourth Amendment claim in the Supreme Court (perhaps because they fear that the damages on such a claim would be insubstantial).  As Professor Renz suggests, the primary constitutional limitation on charging is the requirement of probable cause.  In that sense, the petitioners are imprecise when they argue that there is no constitutional right "not to be framed."  There is, at a minimum, a Fourth Amendment right not to be "seized" in the absence of probable cause.  If respondents did press a Fourth Amendment claim, however, it would encounter the same obstacle as their due process claim.  The criminal defendants were not "seized" within the meaning of the Fourth Amendment until they were charged, and prosecutors enjoy absolute immunity for their charging decisions.  What prosecutors do prior to charging cannot be actionable under the Fourth Amendment because such conduct involves no "seizure" that is the necessary predicate for a Fourth Amendment claim.
>  
> Finally, as for Professor Sheridan's post, there is some question about whether damages awards would create a better regime.  On the one hand, if prosecutors were personally liable, there would be a risk of overdeterrence.  Witnesses frequently recant prior testimony for all sorts of reasons -- some legitimate, some not -- and then blame their prior testimony on prosecutorial pressure.  If prosecutors faced personal liability in all such cases, there could be substantial overdeterrence.  Conversely, personal liability may be unrealistic.  Prosecutors are usually indemnified for their legal costs, and plaintiffs' attorneys would be unlikely to bring suit for a wrongful conviction without a deep pocket available to satisfy the judgment.  Given the likelihood of indemnity, there is a serious question about whether damages awards would really alter prosecutorial behavior.  Prosecutors have substantial political and professional incentives to pursue aggressive tactics.  The possibility of a damages award many years later, after an exoneration and subsequent civil litigation, might not have much of a deterrent effect on prosecutorial decisionmaking.  Given that prosecutors essentially externalize their legal costs to the taxpayers while internalizing the political and professional benefits of aggressive prosecution of high-profile crimes, a regime of damages awards could have little impact on prosecutorial behavior, which imposing substantial burdens on the taxpaying public that must fund such awards.
>  
> Larry Rosenthal
> Chapman University School of Law
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Renz, Jeff
> Sent: Wed 11/4/2009 2:27 PM
> To: conlawprof at lists.ucla.edu
> Subject: Constitutional Right Not to Be Framed?
>
>
>
> Bob Sheridan raises a mix of issues that are not necessarily raised by Harrington.
>
>  
>
> First, while a prosecutor enjoys absolute immunity for prosecutorial functions, those functions are cabined by earlier Supreme Court decisions.  Kalina v. Fletcher, 518 U.S. 118, 129-130 (1997), for example, holds that a prosecutor's act of preparing and signing an affidavit to support an arrest warrant is not a prosecutorial function.  So, to the extent that the Harrington prosecutors knowingly or recklessly elicited false testimony to support the accusation against Harrington, they aren't protected.  The Ninth Circuit has held that a prosecutor has a duty to inquire into the accuracy of statements made by third parties before he includes them in an affidavit, although that duty(and the correlative right) was not clearly established in 2002.  Both cases addressed pre-courtroom conduct.
>
>  
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> Second, once the prosecutor is exercising a prosecutorial function (making discretionary charging decisions, appearing in court, or knowingly eliciting perjury from a witness during trial) we have little choice but to protect those decisions.  That is because guilty defendants will say the same thing that Harrington said in his case.
>
>  
>
> That has to do, of course with clear fourth amendment rights not to be seized without probable cause.
>
>  
>
> Once arrested, the fourth amendment interest disappears and the due process question becomes problematic.  Not having read the briefs in Harrington, I would suggest that the Supreme Court has already mapped the way.  A confined defendant may not bring a §1983 action with respect to the cause of his confinement until and after a court or other body has determined that his confinement is wrongful.  Then he may bring the civil rights action.  Preiser v. Rodriguez, 411 U.S. 475 (1973); Heck v. Humphrey, 512 U.S. 477 (1994).
>
>  
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> If preserving the freedom to make good faith judgments is the interest that is protected by absolute and qualified immunity, then it would seem that requiring a determination that confinement is wrongful as a pre-requisite to suit for wrongful prosecutorial conduct would not harm that.  The trouble is that only those who were found guilty as a result of wrongful prosecutorial conduct would have an action.  Those who were acquitted would not.
>
>  
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> With respect to trial decisions, even those that knowingly or purposely seek false testimony, I think that the Court will rely on state disciplinary bodies.
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>  
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> Finally, I would note that Montana, interestingly enough, has recognized a tort of negligent investigation.  Johnson v. Supersave Markets, Inc., 211 Mont. 465, 686 P.2d 209 (1984), overruled on other grounds, Jacobsen v. Allstate Ins. Co., 351 Mont. 464, 215 P.3d 649, 2009 MT 248 (2009).
>
>  
>
> Prof. Jeffrey T. Renz
>
> School of Law
>
> The University of Montana
>
> 32 Campus Drive
>
> Missoula, Montana  59812
>
> 406-243-5127
>
>  
>
> At issue in a case (Harrington, McGhee, plaintiffs) to be argued before the Court today, as reported by Nina Totenberg of NPR, link supra, two men who had served 25 years in prison before being able to show that they'd been framed, allegedly by prosecutors and police, have sued the alleged conspirators.  These have asserted a defense of absolute immunity as government officials performing their duty.
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>  
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> Plaintiffs assert that they have a constitutional right not to be framed by government.
>
>  
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> The government agents, who have been sued personally, counter with the assertion that there is no "free-standing" constitutional right "not to be framed."
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>  
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> Favoring the government agents is the policy value that protects government agents in the good faith performance of their duty w/o fear of being sued.
>
>  
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> Favoring the plaintiffs is the policy value that protects human life from the conspiracies of government agents.
>
>  
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> My question is this:  Given the value of the policy which protects government agents in the conduct of their duty, should the defense remain as absolute as it seems to be (I'm aware that we have 'qualified' 
>
> immunity for gray area cases) in cases of intentional misconduct while performing core governmental functions, such as the decision to prosecute and moving forward on that decision thereafter?
>
>  
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> In partial answer, I suggest that it is poor public policy to reward incompetence in investigating, which current policy seems to encourage.  
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> It appears, as this case illustrates, especially if won by the officials who stand accused of misconduct, that there is little downside risk in failing to investigate competently.
>
>  
>
> If I may, we use the word "investigate" to include two separate but related activities performed usually by the same person, the investigator.  In the first sense, true investigating means simply trying to find out, while in the second, it means to go about building a case based on what one has decided one has found out.  "True investigation," to be done competently, requires the inclusion of a certain amount of /integrity/, which Richard Feynman, an investigator in the field of science (the exercise of investigation is common to many
>
> areas) explained, meant "bending over backwards to show how you might be wrong."
>
>  
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> True investigation ends when case-building begins, and sometimes the case-building precedes or supplants entirely any real effort at case-building, sometimes called a "rush to judgment."
>
>  
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> The case being argued today implicates this in that under current law, it seems that the incentive to perform true investigation, competently, meaning with integrity as defined, is reduced to a dangerous level, as this case shows.
>
>  
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> While it may be correct to say that there is no "due process" right to require the government itself to investigate competently, at least I've never seen a reference that there is such a "free-standing" right, in a larger sense, the entire process of bringing an accused to justice is an exercise in a more general due process right to a competent investigation before a conviction may stand.  There are constitutional constraints against improper investigation (duress for admissions, unreasonable search, right against self-incrimination, right to counsel, duty of counsel to investigate, duty of government to provide discovery, duty of government not to destroy evidence intentionally,  jury trial, burden of proof, standard of proof, etc.)
>
>  
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> It seems to me that the Court must, or at least ought to, recognize that the need for a competent investigation should outweigh the admitted value that government officials need to feel secure that their honest, good faith, efforts ought not to be punished even if shown later to be wrong.  However, if it can be shown that a government official used the power of government recklessly or in bad faith to railroad a citizen, then why should immunity remain absolute for such conduct?  How does this promote the more general value of a due process right to competency in bringing suspects to justice with some accuracy, reliability, and dependability?
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>  
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> Isn't their any other way for government to protect itself and its agents from lawsuit than by setting up what amounts to an arbitrary shield against misconduct?
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>  
>
> rs
>
>  
>
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