Recent Rulings Suggest Prosecutorial Immunity Has Boundaries

U.S. District Court Judge Joe Billy McDade has ruled that two McLean County (IL) prosecutors are not immune from all claims of alleged misconduct in a lawsuit filed as a result of the wrongful murder conviction of Alan Beaman. Beaman served 13 years for the murder of  his former girlfriend Jennifer Lockmiller before the Illinois Supreme Court overturned his conviction. Pantagraph.com reports here that Judge McDade’s ruling is consistent with a recommendation from federal Magistrate Judge Byron Cudmore that prosecutors James Souk and Charles Reynard were immune from claims related to their prosecutorial roles but that immunity does not extend to their involvement in the case before arrest.

Beaman’s lawsuit alleges that the prosecutors conspired with Normal (IL) police officers and a McLean County Sheriff’s officer in framing Beaman for the murder. Four police officers, the sheriff’s officer, the two prosecutors, the town of Normal and McLean County are named in the lawsuit.

Earlier this year, on February 1st, U.S. District Judge Elaine Bucklo ruled former Cook County Assistant State Attorney Mark Lukanich does not have prosecutorial immunity in a lawsuit brought by Ronald Kitchen, who spent more than two decades in prison, thirteen on death row, before his release and exoneration in 2009. Kitchen’s claim alleges that the prosecutor was nearby as police beat him until he provided a false coerced confession.

Judge Buchlo wrote: “The facts alleged in the first amended complaint, if true, plausibly show that ASA Lukanich was aware of Kitchen’s tortured interrogation and knowingly obtained a coerced and involuntary confession.”

While the judge dismissed Kitchen’s claims for malicious prosecution against Lukanich, because “initiating a prosecution and presenting the state’s case are prosecutorial acts and are barred from suit by absolute immunity,”  she denied immunity for Kitchen’s state claims for “conspiracy and intentional infliction of emotional distress.” The Judge implied that these pre-arrest claims related to work not within the scope of the prosecutor’s responsibilities.

In 2009 the U. S. Supreme Court heard arguments on whether or not prosecutors have absolute immunity not only for their work but for alleged illegalities in preparing the case. Terry Harrington and Curtis McGhee sued prosecutors alleging that they had worked with police in what was tantamount to framing them for murder. They served 25 years before Harrington’s conviction was overturned by the Iowa Supreme Court based in part on a Brady violation. Harrington and McGhee sued the Pottawattamie County prosecutors. The district court found that immunity does not extend to “a County Attorney who violates a person’s substantive due process rights by obtaining, manufacturing, coercing, and fabricating evidence before filing formal charges, because this in not ‘a distinctly prosecutorial function.'”

The Supreme Court ultimately did not rule on the case after oral arguments because Pottawattamie County agreed to pay $7 million to Terry Harringon and nearly $5 million to Curtis McGhee Jr. in exchange for their dropping the lawsuit against the county.

Perhaps the earlier mentioned rulings will prompt further definition of where prosecutorial immunity stops. The rulings should at least provide cautionary pause for prosecutors who engage in pre-arrest efforts to build a case.