Terry Harrington (pictured at the left) and Curtis McGhee served a quarter century of prison time for another man’s crime. In 1977, an all-white jury found the two men guilty of killing John Schweer, a recently retired Council Bluffs (Iowa) police officer who was working security at a used car lot. This week, the Supreme Court of the United States will decide if Harrington and McGhee can sue the prosecutors who framed them.
According to an article at Law.com, then-County Attorney David Richter and Assistant County Attorney Joseph Hrvol “shifted their attention from a suspect who was white and had been seen in the area carrying a shotgun, toward a group of blacks.” Paul Clement, the attorney representing Herrington and McGhee, claims “a witness was coerced to pinpoint Harrington and McGhee, and jailhouse informants were recruited to make false statements about them.”
A recent Washington Post editorial claims that “The prosecutors allegedly coaxed a witness to offer a version of events that implicated two African American men, Curtis W. McGhee Jr. and Terry J. Harrington; the witness gave several different statements over time and had trouble keeping his facts straight. Prosecutors also allegedly coerced other witnesses to lie and withheld evidence that pointed to a different culprit.”
When the star witness couldn’t produce a credible story that would stand up in court, prosecutors showed him statements made by other inmates.
None of this would have come to light if prison barber Anne Danaher hadn’t struck up a casual conversation with member’s of Terry Harrington’s family. The enterprising Danaher thought the case sounded fishy, and filed freedom of information requests on Harrington’s behalf. The inmate had exhausted the appeals process by that time, but clear evidence of prosecutorial misconduct compelled the Iowa Supreme Court to vacate the conviction.
In another odd twist, Harrington and McGhee are being represented before the Supreme Court by former Bush Administration Solicitor General, Paul Clement, a staunch defender of prosecutorial immunity. Asked to explain his sudden shift in emphasis, Clement said, “What it signifies is that I’m no longer working for the government.”
Radley Balko, a Senior Editor at Reason.com and a leading critic of prosecutorial and judicial immunity, sums up the key issue this way:
Hrvol and Richter contend that prosecutorial immunity gives government officials the right to coerce witnesses to lie, withhold evidence pointing to a suspect’s innocence, and work with police to manufacture false evidence of guilt, then use that evidence to win false convictions that send two men to prison for 25 years. Their motivation for making this argument is obvious; they’d rather not pay for their misconduct. But they’re supported in amicus briefs filed by the U.S. Solicitor General, the National District Attorneys Association, and the attorneys general of 27 states and the District of Columbia. Notably, Cook County, Illinois, home to a number of wrongful convictions, also filed its own brief in support of the prosecutors.
A brief filed in support of Hrvol and Richter by Iowa prosecutors cuts to the heart of the matter: “There is no freestanding constitutional ‘right not to be framed’.”
Maybe not, but there should be. The Washington Post’s editorial board says good prosecutors have little to fear if Harrington and McGhee prevail:
Prosecutors need to be able carry out their duties without fear that they’ll become the targets of personal lawsuits if defendants are found not guilty or charges are dropped. But such lawsuits face high hurdles. The Supreme Court has recently — and correctly — made it even more difficult for plaintiffs to make officials personally liable unless there’s convincing evidence that they were directly involved in knowingly violating a clearly established constitutional right. Mr. McGhee and Mr. Harrington have shouldered that burden and should be allowed to proceed with their case.
Here at Friends of Justice we are following Pottawattamie County v. McGhee and Harrington with great interest. A similar species of prosecutorial misconduct is evident in the case of Curtis Flowers (and every other case in which we have intervened). There is strong evidence, for instance, that potential witnesses in Winona were bribed with promises of a $30,000 reward and, in some cases, threatened with prosecution if they didn’t cooperate. The major difference is that witnesses in the Flowers case clearly were not exposed to the testimony of other witnesses. If they had been, their physical descriptions of Flowers would have overlapped at least a little.
The Washington Post assures us that most Hrvol and Richter are just a couple of bad apples; but there is nothing unusual about prosecutors pressuring vulnerable people into perjured testimony. Hrvol and Richter represent an egregious instance of a common phenomenon. They knew their star witness was lying; in most cases, prosecutors merely suspect that the men and women they browbeat into cooperation might be lying–they don’t know for sure . . . and they don’t care.