The U.S. Supreme Court heard arguments Wednesday on whether prosecutors who use false testimony should be liable for a wrongful conviction. "This case sits near the intersection of a pair of well-settled issues," federal defenders from Georgia wrote in a case analysis distributed by the Supreme Court. They said prosecutors who unwittingly use false testimony during a trial are absolutely immune, though such testimony should never knowingly be used.
"In the middle are cases in which an individual commits pre-arrest investigatory misconduct, and then that same individual employs the fruit of that misconduct in a judicial proceeding," Cynthia Roseberry and Morad Fakhimi wrote.
Paul Clement, with King & Spalding, argued on behalf of two men, Curtis McGhee and Terry Harrington, who were convicted and then cleared of murder. He said the prosecutors don't have absolute immunity, referencing past cases where immunity for pretrial investigatory conduct was rejected.
Stephen Sanders, with Mayer Brown, represented investigators and prosecutors, and Pottawattamie County, Iowa. He argued that the false testimony does not cause injury by itself, and only its use in court can cause injury. Because the injury can only be inflicted during the trial, while the prosecutor is immune, there should be no liability for the pre-trial fabrication, he said.
"Your case here is a polite way of telling us we wasted our time in Buckley v. Fitzsimmons," Justice Anthony Kennedy said. "I mean, we were just spinning our wheels in that case?"
In Buckley, the court denied absolute immunity to a prosecutor who played a role in fabricating evidence against a suspect during an investigation, and who made false statements about a suspect during a news conference.