Pottawamie and the Shaking Prosecutor Syndrome

The Supremes will soon hear oral argument in a case that few Americans would believe could arise today, yet reflects the ugliest underbelly of the failure of the criminal justice system, Pottawamie v. McGhee.

The facts are that prosecutors, faced with the notorious shotgun death of a white former police captain, John Schweer, who was working as a security guard in the early morning of July 22, 1977, needed to convicted the “perpetrators” of this heinous crime.  What they did next was unthinkable.  From the District Court opinion:


In essence, each of the asserted claims allege that the prosecutors Hrvol, Richter, and Wilber improperly concealed exculpatory evidence; concealed the alleged coercion of witnesses; participated in court proceedings; coerced witnesses; participated in the Schweer murder investigation; and conspired with the respective police defendants to commit the alleged misdeeds against the Plaintiffs.

The criminal defendants spent the next few decades in prison.  The question now arises from a 1983 action against those who conspired to engage in the big three wrongs that prosecutors can commit: conceal exculpatory evidence, coerce evidence, manufacture inculpatory evidence. Despite doing so, are prosecutors due absolute immunity (like judges and witnesses), qualified immunity (like police), or no immunity at all?

Over at Crime & Federalism, Mike parses the Department of Justice amicus brief, which argues that the “solution” to prosecutorial wrongdoing isn’t liability to those harmed under Section 1983,   Here’s the DOJ solution:


If the allegations here are true, petitioners engaged in prosecutorial misconduct of an execrable sort, involving a complete breach of the public trust. But absolute immunity reflects a policy judgment that such conduct is properly addressed not through civil liability, but through a host of other deterrents and punishments, including judicial oversight of criminal trials, and criminal and professional disciplinary proceedings against prosecutors. 

What is most extraordinary about this argument is that the institutions upon which DOJ would rely are the ones that failed entirely in this case, both to protect beforehand and to redress afterward.  As one might expect from the government, its answer is to trust it to clean up its own mess.  No need for its victims to get their hands dirty. No need for the victims to be compensated for the 25 years lost.

Another brief, however, from a group called Black Cops Against Police Brutality, tells a very different story.  Drug & Device Law, Mark Herrmann, and provides an exceptional overview of the historical failure and perversion of the criminal justice system in the wrongs done blacks.  As Mark ably demonstrates, the problem isn’t merely an historic relic, a trip down memory lane to Scottsboro, but a problem that continues to this day, our facile beliefs to the contrary notwithstanding.



We can imagine few rulings of this Court that would send a more negative message about American criminal justice than to permit white prosecutors to frame African-American suspects for the murder of a white police officer, admit the outrage, and then walk away with impunity, after their victims have wrongfully suffered twenty-five years in prison.

The BCAPB brief argues that prosecutors should be afforded only qualified immunity rather than absolute immunity, eschewing the no immunity position.  It derides the Pottawamie argument that without absolute immunity for prosecutors to engage in flagrantly outrageous wrongs, that prosecutors will be too afraid of liability to perform their jobs.


The Justice Department’s picture of government lawyers quaking in their wingtips lest the pursuit of criminals subject them to amages is demonstrably false.

Mark then runs through the reality of indemnification, an unfortunate fact that shifts the burden of liability for the wrongdoing off the prosecutors and onto the taxpayers.  But the more pointed argument is that police, despite receiving only qualified immunity, somehow manage to do their job, even to the extent of dying in its performance, despite this.  There is no equivalent Shaking Cop Syndrome.

From a policy perspective, offering absolute liability provides no incentive to prosecutors, or the governments for which they work, to avoid deliberate and intentional violations of constitutional rights.  The DOJ claim, that the government can police itself, thank you very much, is laughable.  It just doesn’t happen, and has never happened, even though it might seem in theory like a satisfactory solution to someone who believes in unicorns or the “new professionalism” of police.

Mark goes on to argue that the government’s “fear” of a tidal wave of suits against prosecutors is illusory.



Under Buckley’s functional test, much prosecutorial conduct is still covered by the absolute immunity standard. The volume of cases in which prosecutors play a significant enough role in pretrial investigation to be subject to even frivolous allegations under a qualified immunity standard is much smaller than the number of cases in which the police are vulnerable to suit.
Which raises the bottom line question for BCAPB: Why should prosecutors be held to a lower standard than police?  One might suspect, perhaps even desire, a higher standard of integrity from lawyers who fulfill the governmental function of prosecuting citizens.  Would that be too much to expect?

Kudos to Mark Hermann for an excellent brief, and for being there to fulfill the critical function of representing amicus curiae in this case.  He’s made this fellow curmudgeon proud.

2 thoughts on “Pottawamie and the Shaking Prosecutor Syndrome

  1. John R.

    Yes, well, this one hits pretty close to home I’m afraid.

    The DOJ argument is ridiculous, of course, but they are correct that the “policy” is against individual remedies and individual initiative, and in favor of government remedies and government initiative. Or, put another way, the policy is to favor the government over the individual.

    This policy has broad application beyond the criminal law context, but a case like this puts the DOJ in the position of defending the policy at its most extreme application: denying individuals a remedy against the government even when the government has deliberately harmed them. In fact it wouldn’t be an exaggeration to say that in this case the government attempted to murder them.

    I would say that the DOJ is making a losing argument, but then the SCOTUS did have a hard time with whether someone who is actually innocent has a right not to be put to death.

    So iohno.

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