Yesterday the Supreme Court granted petitioners’ motion to dismiss the writ of certiorari pursuant to Rule 46 in the spellcheck-challenging Pottawattamie County v. McGhee, 08-1065, which involved whether prosecutors who try a case are entitled to immunity when sued for allegedly procuring before trial false evidence to frame a criminal defendant. The motion, which petitioners filed December 30, and to which respondents evidently consented yesterday, was precipitated by a settlement in which the County and its insurers reportedly paid plaintiffs Terry Harrington and Curtis McGhee $12 million. Harrington, who spent nearly 26 years behind bars, will get a little over $7 million, and McGhee (whose case may be marginally weaker because I seem to recall he pleaded guilty again after his first conviction was overturned) just under $5 million.
While the settlement ends this case, this is not the last we’ve seen of this issue. Any other case which credibly presents the same issue will have an enhanced chance of being granted, because the Court has a demonstrated interest in the issue. The facts of Pottawattamie County were particularly sympathetic, which made it more cert-friendly than the run-of-the-mine case; but at this point, I think the Court is interested in the issue and won’t need outrageous facts to grant.
When the Court is considering a case, it typically “holds” other cases that present the same question pending the case’s resolution; when a case is dismissed for whatever reason after argument, the Court not infrequently chooses another case from among those being held and uses it as a vehicle for resolving the question. The Court does not state on the docket that a case is being “held”; instead, you typically see that a case has been assigned to a specific conference for consideration, and then there simply are no further docket entries. Thus, it is not particularly easy to find which cases on the Court’s docket are being held unless you happen to be watching a case as it moves through the system (or unless the government is a party to the case; its hold recommendations in non-IFP cases, which the Court typically follows, are available on the SG’s Office website).
While I have compiled a list of cases I suspect the Court is holding pending resolution of cases on its merits docket, I am not aware of any cases being held for Pottawattamie County. Nor am I aware of any pending cases out there that present the same question. If you know of any, let me know in the comments. It’ll be interesting to see where this goes.
tim baughman says:
“While I have compiled a list of cases I suspect the Court is holding pending resolution of cases on its merits docket….”
That sounds intriguing! Is it available online?
Thanks.
January 5, 2010, 10:50 amAnderson says:
The only pity is that the prosecutors aren’t paying any of it.
January 5, 2010, 11:45 amJay says:
The 5th Circuit’s recent en banc tie vote in Thompson v. Connick would seem to be a likely candidate, although I don’t know if a cert petition has been filed by the NOLA prosecutor’s office. The time for seeking cert would have run only recently, and may well have been extended, so it likely wouldn’t be teed up for a conference until later this spring. http://www.ca5.uscourts.gov/opinions/pub/07/07-30443-CV2.wpd.pdf
January 5, 2010, 1:16 pmJay says:
Update: A petition for cert in that case was filed in November, and the response is due next week. http://origin.www.supremecourtus.gov/docket/09-571.htm
January 5, 2010, 1:39 pmDavid Sucher says:
So how come the same people who will agree that there was a miscarriage of justice in this case — a terrible, horrific one — are so sanguine about letting some people (say, Yeminis allegedly captured on or near a battlefield) rot in prison forever?
(Of course I guess there are people who will say that maybe Harrington and McGee suffered an injustice here but they probably deserved for something else they did. I hope no one that disgusting reads this blog.)
I don’t get it. I would think that people concerned about justice would want all people proven guilty (of a crime or of taking part in war against the USA) to be in prison and those against whom there is no case to be let go.
Even stipulating that “ordinary” crimes and “terrorism” are qualitatively different because of defendant’s intention, why are so many people willing to take the word of…of whom? in fact?…that a particular Yemeni has in fact done anything bad? Why shouldn’t being an “enemy combatant” be determined to be true or false on the basis of facts?
January 5, 2010, 3:52 pmEH says:
Irrelevant.
January 5, 2010, 4:43 pmfwb says:
The Prosecutors should be immediately incarcerated and required to serve an sentence equivalent to that served by those they cheated.
Eye for an eye!
January 5, 2010, 7:00 pmVisitor Again says:
“Irrelevant”
No, relevant. Two can play that silly game.
January 5, 2010, 11:36 pmDavid Sucher says:
As relevant (at least) as the Home Owners Association comments on Ilya Somin’s eminent domain post i.e. not directly on point but arising naturally as one ponders the various tendrils which grow outward from virtually every good blog post.
January 5, 2010, 11:55 pmWednesday round-up | SCOTUSblog says:
[...] resolution of Pottawattamie County v. McGhee (covered by Lyle here), John Elwood of the Volokh Conspiracy writes that “[w]hile the settlement ends this case, this is not the last we’ve seen of this [...]
January 6, 2010, 9:12 amBuddy Hinton says:
Prosecutor lobby wants the issue decided after a couple more ex-prosecutors are appointed (looking at you, Justice Stevens), and they were willing to pay a few million to make that happen.
Based on this, we have a pretty good idea of when this issue will come back.
My guess is that it will come back in a withholding exculpatory, rather than a manufacturing inculpatory, context.
January 6, 2010, 9:51 amJohn Elwood says:
Looks to me that this case more clearly involves municipal liability for a Brady violation than prosecutorial falsification of evidence (although it may be that the issues are kissin’ cousins). Let me know if there’s a part of the opinions I’m overlooking. Thanks.
January 6, 2010, 10:04 amJay says:
John,
January 6, 2010, 3:29 pmYou’re right, it does. Sorry, I wasn’t paying enough attention to what Pottawatomie County was about. It’s still tangentially of interest, I think, because one of the DA office’s main arguments there is that because the evidence was intentionally falsified, they can’t be institutionally liable.
JayJay says:
Would the Senator Ted Stevens trial irregularities make it a good case to bring forth now?
Also, I am curious about something as a layperson on this case. The one juror said there was a death in the family, which was a lie, and went to CA to watch a horse race. Is this something that she could have led to charges being brought against her?
January 6, 2010, 5:06 pmChris Travers says:
I think this is irrelevant for a very specific reason. In the case you are referring to, the Yemeni admitted to cooking for the brigade, admitted to having a brigade-issued firearm, and admitted to surrendering under orders from the brigade. This makes him a classic POW by his own admission. No, he shouldn’t rot in prison forever. He should be repatriated when the insurgency in Afghanistan by the Taliban has ended. Given Afghanistan’s history of incessant conflict that may be a life sentence. But POW rules aren’t about justice. They are about allowing countries to capture and humanely treat captives in such a way that one doesn’t create a revolving door of insurgents.[1] So I think you are constructing a straw man here.
However Pottawattamie county raises some very interesting issues relating to institutional immunity and the limits of prosecutorial immunity. These issues are not well settled. They are also significant and interesting legal issues beyond being a mere miscarriage of justice.
[1] Interestingly one interesting example of why this is important can be found in the American revolution. When General Carlton (commander in chief of the British forces in Canada, but commanding them against the Colonial army) captured a column of Colonials, he confiscated their guns, gave them rations, and sent them home. This appears to have been the major reason why he was recalled and replaced with Gen. Burgoyne (who was unpopular but didn’t last long anyway). Contrast this with Brig. Gen. Morgan’s capture of 700 British troops (out of 1100, with 200 killed!) in Cowpens, and his decision to hold on to these prisoners.
January 7, 2010, 1:21 pmmarkm says:
Chris: Did Carlton ask for parole (an oath not to fight any more)? That was common practice in those days, and most men kept their promises. Also see the terms of surrender negotiated by Grant and Lee at Appomatox, although this case was different in that the insurgency was virtually over.
January 8, 2010, 7:33 amNunya Anon says:
District Attorneys, prosecutors, and law enforcement officials who participate in such frauds are worse than the worst criminals — they are abusing their positions and power to victimize the powerless in order to further their own careers. There should be NO immunity. At a minimum, each and every such public official who knowingly causes innocent people to be convicted should serve the time (combined) of the people they framed.
January 24, 2010, 7:54 pmOur public servants should be just that — servants, not masters. They are not above the law, but should in fact hold themselves, and be held, to a higher standard.
Dr Linda Shelton says:
You might want to look at my civil rights suit, presently in US Dist Crt, N Dist IL – 06 C 4259. The corrupt prosecutor in this case is the Attorney General of Illinois, Lisa Madigan. The case is Shelton v. Madigan.
February 28, 2010, 1:55 amDavid Lewis says:
Review my case Lewis v. Mills Central Illinois. I was a police officer framed by the prosecutor I was investigating. It would be a perfect follow up for Potowattami v. McGhee.
May 2, 2010, 8:21 pm