Prosecutors keep eyes on Bluffs case

COUNCIL BLUFFS — A case that began in a dark used car lot 32 years ago will see the light of the U.S. Supreme Court chamber this week.

The issue before the high court isn't whether Curtis McGhee and Terry Harrington, both of Omaha, were wrongly convicted of murdering a retired Council Bluffs police officer. Or whether the two men were unjustly imprisoned for 25 years.

The court also isn't tasked with deciding whether county prosecutors fabricated evidence that led to the men's conviction.

Rather, the question is: If prosecutors in fact fabricated evidence, can they be sued for it?

Of local interest, the high court's ruling will either halt or propel McGhee and Harrington's lawsuits against Pottawattamie County.

But the case also holds national significance. The court could redefine the scope of prosecutorial immunity, either making it easier or more difficult to sue prosecutors for misconduct.

Oral arguments before the high court are scheduled for Wednesday morning.

Getting a U.S. Supreme Court hearing is rare. The court generally hears cases that have broad constitutional implications or involve interpretation of federal law. Of about 10,000 cases each year, the court chooses to hear oral arguments in roughly 100.

Attorneys for McGhee and Harrington accuse county prosecutors of knowingly coercing false statements that implicated the men in the crime, then using that evidence to successfully prosecute them for the July 1977 murder of John Schweer, a retired Council Bluffs police officer.

Schweer, 56, was working as a security guard at an auto dealership when he died from a gunshot wound to the chest, just 10 days after retiring from the Police Department.

McGhee and Harrington, who were teenagers at the time of the slaying, are represented by Paul Clement, who was U.S. solicitor general under President George W. Bush.

Prosecutors generally are immune from lawsuits for job-related conduct at trial.

When they act as investigators before trial, they are given what is called “qualified immunity,'' which means they are immune from liability if their actions are within their job function and do not violate the law.

Last year, the 8th U.S. Circuit Court of Appeals in St. Louis ruled that the McGhee and Harrington lawsuits could proceed, saying fabricating evidence is not a “distinctly prosecutorial function.”

“Qualified immunity doesn't protect you against that allegation,” said Stephen Davis, attorney for McGhee. “You've got to go to court and let the jury decide.”

Attorneys for Pottawattamie County argue that, even if prosecutors concocted evidence — which they do not concede — it should not open them up to lawsuits.

If the county had fabricated evidence during the investigatory phase and placed it in a drawer, never to be used, there would be no violation of anyone's rights, said attorney Steve Sanders of Mayer Brown in Chicago, the county's legal counsel.

And if that evidence later was used during trial, Sanders said, that is a prosecutorial function.

“Even if there was a constitutional violation at trial, even if the plaintiffs were wrongfully convicted because bad evidence was knowingly introduced at their trial, the Supreme Court is clear. That still gets absolute immunity,” said Sanders, referring to a previous U.S. Supreme Court decision supporting prosecutorial immunity.

In court documents, Clement says the conduct of the prosecutors violated the men's constitutional right to due process. The prosecutors are immune “only if the Constitution is not offended by their horrific pre-trial misconduct,” he wrote.

The case has drawn attention from the legal community and government groups nationwide, although there isn't consensus on what the effect of a ruling in favor of McGhee and Harrington would be.

The Center on the Administration of Criminal Law filed a brief in support of the men because of the “horrifying” details of the case, said Anthony Barkow, executive director of the center.

“Prosecutors who stray so far from what ordinary prosecutors and good prosecutors do, they should be held accountable,” said Barkow, a former U.S. attorney in New York.

Prosecutorial misconduct is rare, Barkow said, but when it is particularly flagrant, victims need some avenue for redress.

Supporters of the Pottawattamie County prosecutors are concerned that an unfavorable ruling could lead to a flood of frivolous lawsuits across the country that would tie up the time and economic resources of prosecutors.

“It will be very easy for anyone who resents the fact that they were convicted to gin up accusations about a prosecutor's conduct during an investigation,” said Sanders, attorney for Pottawattamie County.

Defending itself against the Harrington-McGhee lawsuits has been a long, expensive road for the county. Pottawattamie County has shelled out $1.35 million this year to lawyers at Mayer Brown in Chicago. Last year, the tab was $304,069.

But it isn't just the money, said Ed Ferguson, deputy executive director of the National Association of Counties. It's the “chilling effect” that the fear of legal action could have on a lawyer's willingness to aggressively prosecute defendants.

Barkow said the prospect of that happening is small.

“The vast majority of prosecutors have very little to fear,” he said. “... At the end of the day, frivolous litigation will be dismissed.”

McGhee and Harrington were imprisoned from 1978 to 2003, when the Iowa Supreme Court set aside Harrington's verdict and ordered a new trial.

The Iowa court's ruling noted that police reports indicated another possible suspect in the Schweer killing, and that that information was withheld from defense attorneys. Harrington was never retried.

According to court documents, McGhee, “anxious to be released from prison,” agreed to an Alford plea to second-degree murder in 2003, with the understanding he would be released from prison with credit for time served. Agreeing to an Alford plea isn't an admission of guilt, but it is an acknowledgment that enough evidence exists to garner a conviction.

McGhee has since moved to have the plea set aside, saying it was coerced by current Pottawattamie County Attorney Matt Wilber and based on fabricated evidence.

Neither Harrington nor McGhee could be reached for comment for this article.

After their release from prison, the two men filed their lawsuits alleging that then-County Attorney David Richter and Assistant County Attorney Joseph Hrvol ignored evidence pointing to another suspect.

The lawsuits also state that Richter and Hrvol fabricated evidence by procuring a false statement from another man, who implicated Harrington and McGhee in the murder, as well as false testimony from jailhouse informants incriminating the men.

Pottawattamie County filed a lawsuit to block those lawsuits, saying prosecutors were guaranteed immunity for their work on the case.

Wilber, the current county attorney, declined to comment on the case. A slander lawsuit is pending against Wilber in connection with comments he made asserting his belief in Harrington's guilt.

Contact the writer:

444-1310, elizabeth.ahlin@owh.com

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