Absolute Immunity from Civil Liability, Accountability for Prosecutors

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


The primary ethical and legal duty of a criminal prosecutor is to serve the interests of justice—not their personal interests of winning at any costs as is too often the case with a many prosecutors. This was made clear in October 2008 in the federal prosecution of then-Senator Ted Stevens (R-Alaska) for high-profile corruption charges. The federal prosecutors in the case were determined to bring down one of the most powerful lawmakers in this country—at any costs. D.C. District Court Judge Emmet Sullivan lambasted those prosecutors at the time saying that in his 25 years on the bench he had “never seen mishandling and misconduct like what I have seen” in Sen. Stevens’ case. The federal judge was so incensed at the prosecutorial misconduct that he appointed an outside attorney named Henry Schuelke to investigate the Stevens prosecutors for possible “criminal contempt.” The matter was essentially resolved when current U.S. Attorney Eric Holder requested, and secured, a reversal of Sen. Stevens’ conviction from Judge Sullivan earlier this year.


But the legal and political fallout from the Stevens case lingers in the federal judiciary.  Last month in a meeting with members of the federal Judiciary’s Criminal Rules Advisory Committee Assistant U.S. Attorney Larry Breuer informed the committee that while the Justice Department had implemented “new measures” to ensure that federal prosecutors fulfill their responsibility to disclose any potentially exculpatory information to the defense, the Department would stand firm against expanding the Brady disclosure requirements under Rule 16 of the Federal Rules of Criminal Procedure.  Why?  Do they seek justice or hide it?


Writing in www.mainjustice.com, Joe Palazzolo said that Breuer presentation was a rebuttal to an earlier request by Judge Sullivan urging the committee to consider amending Rule 16 requiring federal prosecutors to “turn over all exculpatory information to defense lawyers in criminal cases.” Sullivan informed the committee that “such a rule would eliminate the need for the court to enter discovery orders that simply restate the law in this area, reduce discovery disputes, and help ensure the integrity and fairness of criminal proceedings.”


Former Harris County District Attorneys Johnny Holmes and Charles “Chuck” Rosenthal left a deplorable legacy of prosecutorial misconduct involving cases where prosecutors not only withheld clearly exculpatory information but fabricated evidence, including the knowing use of perjured testimony, to secure criminal conviction—even in death penalty cases. The administration of these two former district attorneys, which spanned nearly 30 years, was proud of their “win-at-any-costs” philosophy that ultimately morphed into unofficial policy. And things really have not improved much under current “reform” District Attorney Pat Lykos who took office earlier this year. One of her prosecutors was recently discovered hiding potentially exculpatory information in a sexual assault case. The alleged victim had initially identified her attacker as being “black” but he actually turned out to be white. This information was apparently deliberately withheld from the defense attorneys involved in the case.

Texas prosecutors, and the state’s courts of appeal, have drawn recent national media attention in cases involving blatant prosecutorial misconduct. For example, Bennett Gersham, writing in the National Law Journal, criticized both prosecutors and the Texas Court of Criminals Appeals in a November 2, 2009 op-ed piece for their handling of the prosecutorial misconduct involved in the case of Charles Dean Hood. This capital murder case has received ongoing national media attention because it was discovered after Hood’s conviction that the Collin County prosecutor and presiding judge in the case were having an extramarital affair at the time of Hood’s trial. Gersham not only blasted current Texas officials but the entire judiciary system nationwide which too often uses “procedural bars” (issue not timely filed, counsel did not exercise due diligence to discover issue, failure to properly object to an issue, etc.) to “judicially duck” the serious prosecutorial misconduct issues like those in the Hood case. Gersham wrote:


“Thus, knowing well that a defendant’s claim is legitimate and meritorious, prosecutors regularly argue that the defendant failed to raise the claim earlier, as with Hood, even the prosecutor well knew that the defendant could not raise the claims because he did not have the information that, brazenly, the prosecutor had suppressed. Some prosecutors have sought to deflect post-conviction claims of innocence by arguing that the defendant pleaded the wrong theory, or failed to use the correct nomenclature to describe the violation. And too many courts have endorsed the prosecutor’s arguments. There are limits to this judicial deference. A few terms ago, in Blanks v. Dretke, the Supreme Court reversed the U.S. Court of Appeals for the Fifth Circuit, which had endorsed another Texas prosecutor’s gamesmanship. In a death penalty case, the prosecutor argued that the defendant failed to differentiate sufficiently between his distinct legal terms—in effect, he ‘didn’t say “Simon says”’.


“Procedural gamesmanship by prosecutors is not a new phenomenon. But with the increasing demands by courts for enhanced and much more rigorous pleadings requirements—for example, the Supreme Court’s decision last term in Ashcroft v. Iqbal—defendants like Charles Hood are going to find the gateway to justice littered with procedural hoops and mazes of sufficient magnitude and complexity that a defendant may be barred from establishing on the merits that a prosecutor engaged in prejudicial misconduct, that a fair trial was denied and that the truth was lost. And some prosecutors, like the prosecutor of Hood, will champion this result as a big victory.”


And too often prosecutors who routinely engage in unethical prosecutorial misconduct are rewarded with career promotions. Broward County, Florida, Judge Robert Carney is a classic example. During his tenure as a Broward County prosecutor, Carney apparently made it habit of convicting innocent persons and sending them to prison. Broward County Public Defender Howard Finkelstein recently had this to say in the Sun-Sentinel newspaper about Carney: “I cannot think of another prosecutor anywhere in the U.S. that has put away three innocent people in separate cases.”


The last case involved Anthony Caravella who was released from a Florida prison this past September after spending 26 years in prison for a rape/murder conviction secured by Carney before DNA showed he did not commit the crimes. Writing for www.Reason.magazine.com, senior editor Radley Balko reported that Caravella was 15 years of age at the time and had an IQ of 67. Carney had originally sought the death penalty against youngster who was convicted primarily on a false confession beaten out of him by the police but the jury voted 11-1 for a life sentence instead.


The Sun-Sentinel reported that in 1985 Carney prosecuted John Purvis, who was also mentally challenged, for killing a neighbor. Several months after Purvis had been convicted the prosecutor received a tip that the victim’s husband had hired a hit man to kill her. Years later Purvis’ attorneys would learn about the murder-for-hire plot. Purvis spent nine years in prison before the hit man and husband were arrested and prosecuted for the murder.


Again, according to Balko, Carney prosecuted and convicted yet a third man for murder in 1981. Christopher Clugston was convicted based on the testimony of a jailhouse informant who later recanted his false testimony. Then Florida Gov. Lawton Chiles released Clugston’s from prison after he was cleared of the murder in 1994. The apology the State of Florida gave Clugston’s wrongful prosecution was a fatal infection of AIDS he contracted after being gang-raped by fellow inmates in the state’s prison system.


But at least Clugton fared a little better than Frank Lee Smith who was convicted of rape/murder and sentenced to death in 1986 based on the testimony of a single eyewitness. Balko reported that Carney also participated in this prosecution. Smith died of cancer on death row in 2000. Two months after his death, DNA evidence established his innocence.


Fueled by these kinds of convictions, Carney was propelled from the district attorney’s office into a judgeship. Political success based on official misconduct is a sad commentary of the nation’s judiciary. Balko put it this way: “As DNA exonerations continue to accumulate across the country, we’re left with some tough questions about accountability for the public officials who put innocent people in prison. Certainly in some cases honest mistakes can be forgiven. But what about cases like that of John Purvis, where a prosecutor illegally withholds evidence of a suspect’s innocence? What about prosecutors who participated in multiple wrongful convictions? Is it fair to hold them accountable years later? What of those who went on to becomes judges, and now preside over murder cases?”


Balko indeed raises tough, troubling questions—the same ones we’ve have raised in previous articles. At some point there must be accountability for rogue prosecutors. To date, the court-ordered investigation of prosecutorial misconduct in Sen. Stevens’ case more than a year ago has failed to produce any accountability. While some of these rogue prosecutor cases scream for accountability, those screams without fail fall on deaf ears in a system uniquely designed to protect its own—no matter how corrupt. Take for example the Mississippi district attorney named Forrest Allgood whose prosecutorial record, as Balko wrote, “puts him in company with Carney.” The below listed cases highlight Allgood’s record as recorded by Balko:


  • Prosecuted Kennedy Brewer and Levon Brooks, each convicted of the separate rapes and killing young girls in the early 1990a. Allgood relied upon the forensic testimony of a disgraced “junk science” expert named Michael West who said bite marks that appeared on the victim’s body belonged to Brewer.  In 2000 DNA evidence cleared Brewer of raping the young victim. But Allgood leaped frog to the conclusion Brewer must have participated in the crime even if he did not rape the victim. Brewer remained in prison an additional seven years before a check of the state’s DNA database, which Allgood tried to prevent, revealed that one man had committed both rapes and murders. Brewer and Brooks were released from prison in 2007.
  • Allgood once again relied upon “junk science” from yet another disgraced forensic expert named Steven Hayes to convict 15 year-old Tyler Edmonds for murder and relied in part on bad forensic evidence to convict 18-year-old Sabrina Butler, who is mentally challenged, for killing her infant son. Butler received the death sentence. The Mississippi Supreme Court threw out both convictions.


We wholeheartedly endorse Balko’s conclusion about the Allgood and prosecutorial misconduct cases in general:

“Something is wrong here. It may well be true that the prosecutors noted above represent a tiny minority of those who serve or have served in the position. But whatever the number of ‘bad apples,’ our criminal justice and political systems seem unconcerned about weeding them out. Instead, they’re often rewarded and promoted, despite long records of incompetence and misconduct. In fact, in the sense that misconduct can help win convictions, such prosecutors are often rewarded because of it. The Innocence Project estimates that prosecutorial misconduct factored into about a fourth of the wrongful convictions handled by the organization. Yet in none of these cases did a prosecutor face any serious sanction.”


And there is little reason to believe that things will improve any time soon even though the U.S. Supreme Court had agreed to decide whether two men wrongfully convicted in Pottawattamie County, Iowa, for the 1978 murder of a retired police officer who was working as a private security guard can sue the prosecutors who allegedly “framed” and “defamed” them for civil damages. Curtis W. McGhee, Jr. and Terry Herrington were sentenced to life imprisonment. In 2002, the Iowa Supreme Court reversed Harrington’s conviction because the prosecutor in the case, Joseph Hrvol, failed to disclose to the defense that there had been an alternative suspect in the security guard’s murder. A new prosecutor in the case, Matthew Wilber, concluded that there was no evidence to retry Harrington and agreed to file a motion to vacate McGhee’s conviction as well. In exchange, McGhee agreed to enter an Alford plea (a qualified plea that does not admit guilt) to second degree murder and a sentence of time served.


But Wilber was not gracious in defeat. He told a press conference that he had no doubt Harrington committed the murder; that the jury had sent the “right man” to prison “for over twenty-five years.” The prosecutor added that as for “the final justice for Terry Harrington, I will defer that honor to a higher power.” Wilber was no kinder to McGhee, telling reporters that “even though Mr. McGhee did not pull the trigger, our case against him was stronger than [the case] against Terry Harrington.” The prosecutor pointed out that McGhee had told at least “three different people” he had been “with Terry Harrington when Harrington” shot the victim.


McGhee and Harrington filed a civil rights lawsuit in federal district court against Hrvol and several police detectives involved in the investigation that led to their conviction and more than two-decade imprisonment. The two men also sued Wilber for defaming them at the press conference. Hrvol and Wilbert promptly filed motions for summary judgment, arguing they enjoyed “absolute immunity” from civil liability for any actions they undertook in their official capacity as prosecutors. The district court rejected their absolute immunity defenses. The Sixth Circuit Court of Appeals reversed the district court’s ruling on the absolute immunity defenses, concluding the district court has applied an improper legal analysis to reach its decision.

The U.S. Supreme Court recently heard oral arguments in the case. The Washington Post said the issue squarely before the Court is whether there is a “freestanding constitutional right not to be framed.” Hrvol and Wilber, with the support of the National District Attorneys Association, argued before the High Court that there is no such constitutional protection against being framed by a criminal prosecutor.


The decision in this case, in all likelihood, will come down along political lines—four conservatives supporting the prosecutors and four liberals supporting the framed men with Associate Justice Anthony Kennedy holding the swing vote. It’s tragic that the measure of justice achieved before the nation’s highest court comes down to one man’s unenviable task of deciding what is right and wrong free of political ideology. We strongly suspect that the two prosecutors in this case will walk away “scott free” of accountability from the misconduct charged against them.


Serving the interests of justice is difficult enough on a fair and level playing field but justice is impossible to achieve when the prosecution is permitted to litter the playing field with potholes of perjured testimony, fabricated forensic evidence, and withheld exculpatory evidence.




McGhee v. Pottawattamie County, 547 F.3d 922 (6th Cir. 2008)
Pottawattamie County v. McGhee, 125 S.Ct. 2002 (U.S. 2009)