Terry Harrington stands with family and friends outside the Clarinda Correctional Facility after Iowa Governor Tom Vilsack signed a reprieve for Harrington on April 17, 2003
In July 1977, retired police captain John Schweer was shot and killed while working as a night watchman at an Oldsmobile dealership in Council Bluffs, Iowa. Two teenagers, Curtis McGhee and Terry Harrington, were convicted of the murder based on evidence they allege was knowingly fabricated by prosecutors.
Pottawattamie County prosecutors David Richter and Joseph Hrvol presented a case that rested almost entirely on the testimony of a 16-year-old kid who was caught stealing cars and offered a $5,000 reward if he provided information about the murder. The witness misidentified the murder weapon, changed his story multiple times and fingered two other men before naming McGhee and Harrington in the crime. He even had to be coached by prosecutors about what to say during the trial so that his story matched the evidence. Richter and Hrvol revealed none of this at trial, nor the fact that they had previously suspected another man — one who had been positively identified by an eyewitness and had failed a polygraph test.
On Nov. 4, the Supreme Court heard oral arguments not over whether Richter and Hrvol had framed two men for murder, but whether they could be sued for it. In 2003, Iowa's supreme court overturned Harrington's conviction, while McGhee pled guilty to lesser charges and was released. Now both men are suing the Pottawattamie County prosecutors, claiming they coerced and coached witnesses, fabricated evidence and arrested them without probable cause. But according to federal law supported by numerous legal precedents, prosecutors have immunity for anything they do during a trial. Richter and Hrvol say they were just doing their job.
"If a prosecutor knowingly introduces false evidence at trial, that prosecutor is absolutely immune from lawsuit," explains Stephen Sanders, an attorney representing Richter and Hrvol. The rationale is that if prosecutors could be blamed for errors in a trial, they would become vulnerable targets for any litigious convict with an ax to grind.
"This means that some people who are genuinely wronged by a prosecutor [are not] able to recover," Sanders concedes. "But better that, the court says, than have prosecutors plagued by endless nuisance litigation or have them make decisions about whether or not to bring someone to trial based on whether they think they're going to get sued."
Sanders has a point: prosecutors build cases around eyewitnesses and uncooperative informants; holding them accountable for others' attempts to impede justice would hamper the entire judicial system. And yet, what of Harrington and McGhee? They were only 17 years old when they were convicted, and their story reads like something out of a John Grisham novel.
Theirs was a small town still reeling from the shock of a murder. Richter, the county attorney, was up for election the following year. The authorities' first suspect — a white man married to the daughter of the fire chief — failed a lie-detector test and was identified by more than one witness; his case was inexplicably dropped. Instead, Hrvol and Richter targeted two black teenagers whose only connection to the murder came from the testimony of a teenage boy who was arrested for stealing a car. The boy gave three alternate versions of the murder, admitted to lying on multiple occasions, and was allegedly pressured by Hrvol and Richter into naming Harrington and McGhee.
Hrvol and Richter cannot be tried for knowingly putting a dishonest witness on the stand. They don't have to own up to the fact that they presented false evidence or coerced a witness's testimony. But fortunately for McGhee and Harrington, they did something on which the law is not completely clear — they didn't just present the evidence at trial, but also helped gather it. In an unusual move, the prosecutors aided detectives by canvassing the neighborhood and interviewing witnesses, and so their actions may not be covered by absolute immunity. That is what the Supreme Court will decide.
"Usually when there's a case of fabricating evidence, it's done by the police officers because they're the ones investigating the crime. Like with Mark Furman allegedly planting a bloody glove on O.J. Simpson's property," says Todd Pettys, a law professor at the University of Iowa. Police officers don't have absolute immunity and can be sued when their actions are egregious enough. Framing someone for murder definitely falls into that category. "But if the prosecutors do it," says Pettys, "then what do you do?"
Sanders says his clients have not admitted to any wrongdoing. They haven't admitted or denied that they framed two men for murder. Instead, they are claiming that their guilt doesn't matter, that it was legal either way.
But to McGhee and Harrington, it does matter. They spent 25 years behind bars for a crime that they almost certainly did not commit. And now the men have gone to the Supreme Court not for justice but for the simple right to seek it.
"If the court doesn't protect an American from being framed for murder, if there isn't a remedy for being put in prison for something he didn't do based on evidence falsified against him," says McGhee's layer, Steve Davis, "then I'm going to move."