Do Prosecutors Really Have the “Right” to Frame Us?

Two men were sentenced to life imprisonment and served more than 25 years each before a prison employee, who had gotten to know them and their families, obtained a copy of the file and realized that the prosecutors had violated their constitutional obligations by not disclosing to defense counsel extensive information that tended to show they had the wrong men.

After their release, McGhee and Harrington sued the prosecutors for fabricating and using perjured testimony. The District Court and the Court of Appeals agreed they had a right to prove their case.

The Court of Appeals described the strong circumstantial evidence against someone else. It commented that ” … County Attorney … [David] Richter was campaigning [for reelection] in the face of Schweer’s unsolved murder.” But instead of pursuing that evidence, the prosecuting attorneys turned to “Kevin Hughes, a 16-year old with a long criminal record” who had been picked up in Nebraska for car theft. The Council Bluffs detectives “promised [Hughes that] (1) he would not be charged with the murder, (2) he would be helped with his other criminal charges, and (3) there was a $5,000 reward available, if Hughes helped the detectives with the Schweer murder. Hughes agreed ….”

But Hughes answers left Iowa officials suspicious. Hughes repeatedly implicated others, but nothing fit the facts. So they supplied the facts and Hughes said, in effect, “Oh yeah, that’s what happened.” That is a textbook example of how not to do a witness interrogation. You can’t tell what the witness says to save his own skin from what he actually knew. With the promises, the risks were even higher. Indeed one panel of a federal Court of Appeals described prosecutors’ promises to witnesses as bribery, illegal and punishable if anyone except the prosecutors did that. What is such testimony worth?

Despite knowing that Hughes was untrustworthy, and that they had probably found the real killer, who, as plaintiffs’ lawyers wrote, was “the white brother-in-law of a Council Bluffs Fire Department captain, … [the prosecutors used] Hughes to frame Harrington and McGhee – two African-American teenagers from across the state line.”

In the U.S. Supreme Court, the attorney representing the prosecutors told the Court that there is no right not to be framed by a prosecuting attorney. You heard that right. Hearing counsel say that the day before the argument, I looked forward to the backfire. He made the argument. There was no backfire.

The passion that came across in the argument was from Justice Alito who was afraid that prosecutors would be in great danger if they don’t have the right to frame people. Roberts and Scalia clearly agreed. The women on the Court did their best to counter, with Stevens, probably, and Kennedy, possibly, on their side. Breyer was hard to read. Arguments are not always a reliable gauge of how they’ll vote. But it was chilling that any members of the Court could defend a prosecutor’s right to frame people. For anyone else, that’s a crime.

The criminal provisions of the Bill of Rights were to prevent government, including prosecutors , from framing people. All the protections then known were included to avoid people being thrown into prison or executed for things they didn’t do but whom the authorities, whether the king or lower officials, wanted put out of the way.

Perhaps Roberts, Scalia and Alito will wake up and remember that this is America and we are supposed to believe in freedom, decency and justice. For the moment, it seems the infamous Star Chamber has supporters on the Court.

This commentary was broadcast on WAMC Northeast Report, November 17, 2009.

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