CHICAGO, Illinois (PNN) - January 29, 2014 - In an important decision on immunity, the Fascist Police States of Amerika Court of Appeal for the Seventh Circuit has ruled that a prosecutor is not protected by immunity for coercing false testimony that sent a man to death row 17 years ago. Two prosecutors were accused of egregious misconduct: Lawrence Wharrie and David Kelley.
The new opinion from the Seventh Circuit is Fields v. Wharrie, 2014 U.S. App. LEXIS 1333.
The case involved the conviction in 1986 of street-gang member Nathson Fields for two murders. He was sentenced to death but granted a new trial in 1996. The new trial was based on the disclosure that the trial judge, Thomas Maloney, had accepted a $10,000 bribe from Fields’ co-defendant, Earl Hawkins, for his own acquittal. Maloney - showing a misplaced or belated form of honesty - later returned the money after Hawkins’ conviction (and disclosure of a federal investigation).
The second trial resulted in the acquittal of Fields after various witnesses recanted their testimony. That trial revealed misconduct and coercion by the prosecution to secure false testimony. Fields then sued Lawrence Wharrie and David Kelley for his then 17 years of incarceration. The prosecutors insisted that they had immunity and the district court agreed. However, later on reconsideration, the court stripped Wharrie of qualified immunity for his role in the investigation.
The matter went to a Seventh Circuit panel, which included conservative icon Richard Posner. Writing for the majority, Posner held that it would be absurd to allow such prosecutors to claim immunity in such cases. Posner writes with his usual clarity and with some passion in rejecting immunity in a case of prosecutorial immunity.
"Wharrie is asking us to bless a breathtaking injustice. A prosecutor, acting pre-prosecution as an investigator, fabricates evidence and introduces the fabricated evidence at trial. The innocent victim of the fabrication is prosecuted and convicted and sent to prison for 17 years.
"On Wharrie’s interpretation of the decision in Buckley, the prosecutor is insulated from liability because his fabrication did not cause the defendant’s conviction, and by the time that same prosecutor got around to violating the defendant’s right he was absolutely immunized. So grave misconduct by the government’s lawyer at a time where he was not shielded by absolute immunity; no remedy whatsoever for the hapless victim."
In discussing the Supreme Court’s 1993 decision in Buckley v. Fitzsimmons, 509 U.S. 259 (1993), Posner added, “A prosecutor may not shield his investigative work with the aegis of absolute immunity merely because, after a suspect is eventually arrested, indicted and tried, that work may be retrospectively described as ‘preparation’ for a possible trial; every prosecutor might then shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial.”
The “breathtaking injustice” described by Posner, however, was not enough for Judge Diane Sykes, who wanted to extend immunity to the prosecutor.
Putting aside Sykes’ dissent, many will likely find it surprising that a prosecutor still has immunity for outrageous acts like coercion and soliciting false testimony if it occurs at trial.