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Federal Appellate Court Finds Contradiction in Lower Court’s Denial of Absolute Immunity to Prosecutor

The U.S. Court of Appeals for the Seventh Circuit has affirmed the lower court’s denial of immunity to one prosecutor and reversed and remanded for reconsideration the denial of immunity to another prosecutor.

The U.S. District Court for the Northern District of Illinois denied absolute immunity to Illinois prosecutors Lawrence Wharrie and David Kelley in a suit alleging that prosecutors had coerced knowingly false testimony from witnesses. Wharrie and Kelley appealed. On January 23, 2014, the Court of Appeals affirmed Wharrie’s denial but reversed and remanded Kelley’s, instructing the district court to reconsider the law as it applied to Kelley’s alleged coercion during the prosecutorial process, as the district court had held in a previous proceeding that Wharrie had absolute immunity against a similar allegation.

Nathson Fields was acquitted on retrial of two 1984 murders after 17 years of imprisonment. Fields subsequently filed suit in the district court against Wharrie and Kelley, who had prosecuted him—Wharrie in the original trial in 1985, and Kelley in a retrial in 1998. Fields accused the defendants of violating federal and state law by allegedly coercing witness to give knowingly false testimony.

The District Court dismissed Field’s federal claim of the 1985 coercion on the grounds that Wharrie had absolute immunity, but did not dismiss the remaining claims. The defendants appealed. The Court of Appeals ordered the dismissal of the federal claims, holding that the defendants were entitled to absolute immunity, and remanded the state law claims to the District Court. The District Court granted Field’s motion to reconsider only the 1985 federal coercion claim due to new case law. (See: Whitlock v. Brueggemenn, 682 F. 3d 567 (7th Cir. 2012)) The District Court therefore held that Wharrie was not entitled to dismissal under the defenses of absolute immunity on the 1985 federal and state claims and Kelley on the 1998 state claim.

The defendant appealed. In first considering Field’s 1985 federal coercion claim the court of appeals distinguished coerced evidence from fabricated evidence, with Wharrie, in spite of Field’s terminology, allegedly fabricating evidence against Fields. According to the court of appeals, inducing a witness to give testimony that may be true is coercion and inducing a witness to give testimony that was known by the parties to be false if fabrication.

Under federal law, prosecutors are afforded absolute immunity from civil suits while performing in their prosecutorial capacity. However, this protection is not extended to instances where the prosecutors work in a pre-prosecutorial role; rather, qualified immunity applies, which protects the prosecutors from a civil suit “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

The court of appeals pointed out that a prosecutor is still entitled to absolute immunity from coercion or fabrication claims in instances where the alleged coercion or fabrication occurs under the investigative role but does not cause injury to the plaintiff until the prosecutor is protected under the prosecutorial role. The court of appeals also held that the only exception was its recent decision in Whitlock, in which the fabrication and the injury – such as an indictment- happened before trial while the prosecutor was not performing in the prosecutorial role. This exception did not include coercion, where the coerced testimony could not be true or false and the witnesses themselves had a cause of action for being coerced.

Because Wharrie fit the Whitlock exception by allegedly fabricating evidence that led to Field’s arrest and indictment, the court of appeals held that Wharrie was not entitled to absolute immunity. The court also determined that qualified immunity did not apply as the law was established. “By 1985… [that] fabricating evidence against a criminal defendant was a violation of due process.” Finally, as to Field’s 1985 state fabrication claim, the court of appeals reasoned that since it was unclear whether Illinois had absolute immunity, the court saw no reason to dismiss the claim.

Where the court of appeals disagreed with the district court was the district court’s refusal to dismiss Field’s 1998 state claim against Kelley. Apparently, the district court had determined after the defendant’s first appeal that Wharrie was entitled to absolute immunity for his prosecutorial stage of Field’s retrial. Because Kelley’s conduct had been identical to Wharrie’s the court of appeals did not understand why the district court had not dismissed the claim against Kelley.

The court of appeals therefore reversed as to Field’s claim against Kelley, ordering the district court to reconsider its refusal to dismiss.

See: Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014).

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Related legal case

Fields v. Wharrie