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Prosecutorial Misconduct Case Pending Before Supreme Court Settles for $12 Million

On January 4, 2010, the U.S. Supreme Court side-stepped resolving an important case that would have likely exposed prosecutors to greater liability when they engage in prosecutorial misconduct.

The case, Pottawamie County v. McGhee and Harrington, S.Ct. No. 08-1065, was filed by Curtis W. McGhee, Jr. and Terry J. Harrington after both were wrongly convicted and spent 25 years in prison for a murder they did not commit.

In July 1977, Jerry Schweer, a retired police captain, was working security at a local car dealership in Council Bluffs in Southwest Iowa. He was killed with a shotgun, and his body was found ten days later near some railroad tracks.

Schweer’s murder was a special case for Council Bluffs police and county prosecutors – he was one of their own. Detectives Daniel C. Larsen and Lyle W. Brown worked the case along with prosecutors David Richter and Joseph Hrvol.

Early leads pointed to Charles Gates, a white male who matched the description of a suspect seen in the area at the time of the shooting, walking his dogs and carrying a shotgun. Nevertheless, police abandoned Gates as a suspect, opt-ing instead to blame the murder on McGhee and Harrington, two African-American youths.

To maintain the homicide charge against McGhee and Harrington, police and prosecutors relied on a fabricated ac-count of the murder as told by Kevin Hughes, a 16-year-old witness who had been arrested for car theft. Hughes, it would later be learned, falsely implicated McGhee and Harrington after police and prosecutors threatened to charge him with Schweer’s murder instead. Prosecutors then knowingly used Hughes’ false testimony at trial.

Over the years while McGhee and Harrington languished in prison, prosecutors covered up their misconduct with more lies. For example, during a 1987 post-conviction proceeding, prosecutors lied about the existence of other potential suspects in the case even though another suspect existed – Gates, who had failed a polygraph test during the Schweer murder investigation.

Eventually, Gates’ identity became known. Harrington’s conviction was reversed by the Iowa Supreme Court in February 2003, and he was granted a new trial. See: Harrington v. State, 659 N.W.2d 509 (Iowa 2003). One justice wrote that he was “outraged” by the suppression of evidence in Harrington’s case. Despite this development, a new prosecutor and police investigator, Matthew Wilber and David Dawson, resorted to their predecessors’ tactics to secure another conviction.

Wilber and Dawson pressured Hughes to recant his statement that he had been forced to lie. Hughes ultimately re-fused to play along, Harrington received a reprieve from the governor, and the charges against him were finally dropped in October 2003 – but not before Wilber had duped McGhee into accepting a no-contest plea to the murder charge that resulted in his release with time served.

McGhee and Harrington sued all of the prosecutors and investigators involved in their wrongful convictions, claiming misconduct. Their lawsuit made it all the way to the U.S. Supreme Court, which granted certiorari in the case on April 20, 2009 to resolve the question of whether the prosecutors were entitled to absolute immunity.

Specifically, the question before the Court was “whether a prosecutor may be subjected to civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly (1) violated a criminal defendant’s ‘substantive due process’ rights by procuring false testimony during the criminal investigation, and then (2) introduced that same testimony against the criminal defendant at trial.”

However, after oral argument was presented the parties restarted settlement negotiations, and the prosecutors agreed to settle the case for $12 million – $7 million going to Harrington and $5 million to McGhee. The Supreme Court dismissed the writ of certiorari following the settlement without entering a decision. The underlying appellate ruling was McGhee v. Pottawattamie County, 547 F.3d 922 (8th Cir. 2008).

The case is not completely over, though. McGhee and Harrington’s claims against the City of Council Bluffs and the Council Bluffs police department are still pending but have not yet been set for trial.

McGhee is represented by Stephen Davis of Canel, Davis & King, a Chicago law firm, and Harrington is represented by J. Douglas McCalla of the Spence Law Firm of Jackson, Wyoming. See: McGhee v. Pottawattamie County, U.S.D.C. (S.D. Iowa), Case No. 4:05-cv-00255-RP-TJSC.

Additional sources:,, Spence Law Firm press release, Washington Post

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Related legal cases

McGhee v. Pottawattamie County

Pottawamie County v. McGhee and Harrington

McGhee v. Pottawattamie County