In 1978, two teenagers, Curtis McGhee and Terry Harrington, were convicted of a murder they did not commit and sentenced to life in prison.1 Twenty-six years later, the Iowa Supreme Court vacated Harrington’s conviction and granted both petitioners new trials after discovering that prosecutors had induced the primary witness’s testimony, with the knowledge that it was false.2
The two prosecutors had investigated the murder alongside the police from the outset of the case, interviewing witnesses before any arrests were made or charges were filed.3 The prosecutors later admitted that they disregarded exculpatory evidence throughout the investigation and supplied their primary witness with facts about the murder to help fill the gaps in his story.4
The witness revealed that he had no personal knowledge of the murder and gave false testimony inculpating Harrington and McGhee in exchange for a monetary reward and the prosecutors’ promise that they would not charge him with the murder.5 McGhee and Harrington were released in 2003 after each serving twenty-six years in prison. Both subsequently brought § 1983 actions against the prosecutors and officers involved in the investigation and prosecution, alleging, among other things, that the state officials used false and fabricated testimony and withheld exculpatory evidence, depriving McGhee and Harrington of their liberty in violation of the Fourteenth Amendment.6
The district court rejected the prosecutors’ assertion of absolute immunity.7 Instead, the court held that the prosecutors were entitled at most to qualified immunity because they acted as investigators, rather than as advocates, in eliciting false testimony prior to the filing of criminal charges.8 The Eighth Circuit affirmed in large part.9 In doing so, the court dived squarely into the growing controversy over whether a prosecutor’s pre-trial fabrication of evidence can stand as a cognizable constitutional violation under § 1983.10 Judge Easterbrook, writing for the Seventh Circuit, concluded that it could not,11 and the Third Circuit followed suit.12
The Second Circuit, however, strenuously disagreed, reasoning that individuals have a substantive due process right not to be deprived of liberty as a result of a prosecutor’s fabrication of evidence.13 Under the Seventh Circuit’s analysis, fabricating witness testimony does not, standing alone, infringe upon the defendant’s constitutional rights, and thus there is no prima facie § 1983 case.14 Further, the prosecutor’s use of the fabricated evidence at trial is shielded by absolute immunity because a prosecutor acts as an advocate for the State when presenting evidence during a trial.15
An individual convicted on the basis of fabricated evidence thus has no remedy under § 1983 – fabrication of evidence before trial does not violate his constitutional rights, and use of the fabricated evidence at trial is shielded from suit by absolute immunity. The Supreme Court granted the prosecutor’s petition for certiorari in Pottawattamie County for the 2009-2010 Term, and many observers expected the Court to resolve the circuit disagreement over the issue. The parties argued before the Court but reached a $12 million settlement before a decision was released,16 leading the Court to dismiss the case without resolving the conflicting circuit approaches.17 Meanwhile, studies continue to document the pervasive prosecutorial misconduct present in wrongful convictions.