No.

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POTTAWATTAMIE COUNTY, IOWA,

JOSEPH HRVOL, AND DAVID RICHTER,

Petitioners,

Vo

TERRY J. HARRINGTON

AND CURTIS W. MCGHEE JR.,Respondents.

On Petition for a Writ of Certiorari tothe United States Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

JEFFREY W. SARLES

Counsel of RecordSTEPHEN SANDERS

VINCENT J. CONNELLY

LORI E. LIGHTFOOT

Mayer Brown LLP71 S. Wacker DriveChicago, IL 60606(312) 782-0600

Counsel for Petitioners

i

QUESTION PRESENTED

Whether a prosecutor may be subjected to a civiltrial and potential damages for a wrongful convictionand incarceration where the prosecutor allegedly (1)violated a criminal defendant’s "substantive dueprocess" rights by procuring false testimony duringthe criminal investigation, and then (2) introducedthat same testimony against the criminal defendantat trial.

ii

PARTIES TO THE PROCEEDING

Petitioners Pottawattamie County, Iowa, JosephHrvol, and David Richter are defendants in the dis-trict court and were appellants in a collateral orderdoctrine appeal in the Eighth Circuit. MatthewWilber also was an appellant in the Eighth Circuitappeal on a question not related to the issues in thispetition, and thus he is not a party before this Court.Respondents Terry J. Harrington and Curtis W.McGhee Jr. are plaintiffs in the district court.

oo.111

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..........................................i

PARTIES TO THE PROCEEDING ...........................ii

TABLE OF AUTHORITIES .......................................iv

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

CONSTITUTIONAL, STATUTORY, ANDREGULATORY PROVISIONS INVOLVED ..............1

STATEMENT ..............................................................2

REASONS FOR GRANTING THE PETITION .........5

I. The Eighth Circuit’s Decision Widens AndDeepens A Split Among The Circuits OnThe Critical Issue Of ProsecutorialImmunity ................................................................6

II. The Eighth Circuit’s Decision Cannot BeReconciled With This Court’s Precedents ...........12

A. The decision below fails to analyzeconstitutional violations withparticularity ....................................................12

B. The decision below violates this Court’s"function test" for prosecutorialimmunity .........................................................18

CONCLUSION ..........................................................20APPENDIX A: Opinion of the court of appeals ........laAPPENDIX B: Opinion of the district court ..........21a

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Albright v. Oliver, 510 U.S. 266 (1994) .............13, 14

Alcorta v. Texas, 355 U.S. 28 (1957) ........................15

Arizona v. Fulminante, 499 U.S. 279 (1991) ...........16

Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ..passim

Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir.1994), cert. denied, 513 U.S. 1085 (1995) ...passim

Burns v. Reed, 500 U.S. 478 (1991) ..................passim

Harrington v. State, 659 N.W.2d 509 (Iowa2003) ................................................................2, 17

Imbler v. Pachtman, 424 U.S. 409 (1976) .........passim

Kalina v. Fletcher, 522 U.S. 118 (1997) ...............6, 18Michaels v. New Jersey, 222 F.3d 118

(3d Cir. 2000) ......................................................11Mitchell v. Forsyth, 472 U.S. 511 (1985) ...................4Mooney v. Holohan, 294 U.S. 103 (1935) .................15

Napue v. Illinois, 360 U.S. 264 (1959) .....................15

Pyle v. Kansas, 317 U.S. 213 (1942) ........................15

Reno v. Flores, 507 U.S. 292 (1993) .........................12

United States v. Lanier, 520 U.S. 259 (1997) ..........13Van de Kamp vo Goldstein, 129 S. Ct. 855

(2009) .....................................................................5

Wallace v. Kato, 549 U.S. 384 (2007) .................14, 16Zahrey v. Coffee, 221 F.3d 342 (2d Cir. 2000) ..passim

MISCELLANEOUS

WAYNE R. LAFAVE, ET AL., CRIMINAL

PROCEDURE (3d ed. 2000) ....................................16

PETITION FOR A WRIT OF CERTIORARI

Petitioners Pottawattamie County, Iowa, JosephHrvol, and David Richter respectfully petition for awrit of certiorari to review the judgment of theUnited States Court of Appeals for the Eighth Cir-cuit in this case.

OPINIONS BELOW

The opinion of the Eighth Circuit (App., infra,la-20a) is reported at 547 F.3d 922. The districtcourt’s opinion (App. infra, 21a-155a) is reported at475 F. Supp. 2d 862.

JURISDICTION

The Eighth Circuit entered judgment on Novem-ber 21, 2008. This Court’s jurisdiction is invoked un-der 28 U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY, ANDREGULATORY PROVISIONS INVOLVED

The Fourth Amendment to the United StatesConstitution provides, in relevant part:

The right of the people to be secure in theirpersons, houses, papers, and effects, againstunreasonable searches and seizures, shallnot be violated * * *

The Fourteenth Amendment to the United StatesConstitution provides, in relevant part:

No State shall make or enforce any lawwhich shall * * * deprive any person of life,liberty, or property, without due process oflaw * * *

2

STATEMENT

This petition addresses a critical issue of federallaw related to prosecutorial immunity on which, asthe following background shows, the circuits are di-vided.

The plaintiffs in this case, Terry J. Harringtonand Curtis W. McGhee Jr. (hereinafter "respon-dents"), were tried and convicted in 1978 for themurder of an auto dealership security guard inCouncil Bluffs, Iowa. The Iowa Supreme Court va-cated Harrington’s conviction in 2003, based on afinding that petitioners had failed to disclose excul-patory evidence of an alternative suspect.Harrington v. State, 659 N.W.2d 509 (Iowa 2003).Following that decision, McGhee, whose convictionwas based on essentially the same facts and evi-dence, entered an Alford plea to second-degree mur-der in exchange for a sentence of time served. Har-rington was not retried.

In 2005, respondents sued petitioners in theUnited States District Court for the Southern Dis-trict of Iowa under 42 U.S.C. § 1983 and other causesof action, alleging inter alia that former county at-torneys Joseph Hrvol and David Richter had coercedfalse witness testimony during the criminal investi-gation of respondents; subjected respondents to falsearrest; introduced false testimony against respon-dents at trial; and withheld exculpatory evidence.Respondents did not allege that petitioners had sub-jected them to malicious prosecution.

Petitioners moved for summary judgment basedon absolute immunity, qualified immunity, and otherdefenses. In an opinion and order on February 23,2007, the district court dismissed claims against pe-

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titioners that were based on withholding of exculpa-tory evidence. Petitioners were absolutely immunefrom those claims, the district court held, because"failure to turn over exculpatory evidence is neces-sarily a function intimately associated with the judi-cial process." App., infra, 85a (citing Imbler v.Pachtman, 424 U.S. 409, 431 n.34 (1976)).

However, the district court denied immunity tothe extent that respondents’ claims arose from alle-gations that petitioners had coerced false testimonyfrom witnesses that was later introduced at trial.The district court held that such allegations were"sufficient to state a substantive due process claim,"App., infra, 104a, and that a constitutional rightagainst such conduct by a prosecutor was "clearly es-tablished." Id. at l14a.

In holding that petitioners could be subjected totrial and potential liability for procurement and useof false testimony, the district court expressly re-jected contrary authority from the Seventh Circuit.App., infra, 104a. In Buckley v. Fitzsimmons, 20 F.3d789, 795 (7th Cir. 1994), cert. denied, 513 U.S. 1085(1995),1 the Seventh Circuit held that procurement offalse testimony by a prosecutor, without more, doesnot violate any of a criminal defendant’s constitu-tional rights. Further, the Seventh Circuit explained,the use of such testimony in judicial proceedings isshielded by absolute immunity. Ibid.

In this case, the district court not only rejectedthe Seventh Circuit’s analysis as "unpersuasive,"

1 To avoid confusion with an earlier decision by this Court in

the same case, Buckley v. Fitzsimmons, 509 U.S. 259 (1993),which is discussed elsewhere in this petition, petitioners will re-fer to the Seventh Circuit decision as "Buckley II."

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App., infra, 104a, it relied on the dissent in BuckleyII. The district court opined that a prosecutor"should not be immune from § 1983 liability" for pro-curing false testimony, because such conduct’"ripen[s] into a § 1983 cause of action * * * by use ofthe perjured testimony at trial."’ Id. at 107a (quotingBuckley II, 20 F.3d at 800 (Fairchild, J., dissenting))(emphasis added). Thus, although petitioners arguedthat qualified immunity shielded them from suit be-cause procurement of false evidence does not, in it-self, violate any clearly established constitutionalright, the district court not only denied that defense,it effectively abrogated absolute immunity for the useof that testimony at trial. As a result, the court al-lowed respondents to seek to hold petitioners liablefor the consequences of the testimony, namely, re-spondents’ convictions and incarcerations.

Petitioners brought an appeal under the collat-eral order doctrine to the Eighth Circuit. SeeMitchell v. Forsyth, 472 U.S. 511, 525 (1985). In ac-cordance with the Seventh Circuit’s decision inBuckley II, they argued that only the use of false tes-timony, not merely its procurement, could have vio-lated Harrington and McGhee’s constitutional rights,and that the use of such testimony at trial wasshielded by absolute immunity. See App., infra, 17a-18a.

The Eighth Circuit rejected this argument. Id. at18a-19a. Instead, with only brief discussion, it af-firmed the district court’s analysis, holding that aprosecutor’s procurement of false testimony "violatesa [criminal defendant’s] substantive due processrights." Id. at 19a.

Relying on a case from the Second Circuit,Zahrey v. Coffee, 221 F.3d 342 (2d Cir. 2000), the

Eighth Circuit further held that a prosecutor is notimmune for procurement of false evidence "where theprosecutor was accused of both fabricating evidenceand then using the fabricated evidence at trial," re-sulting in a post-trial "deprivation of liberty." App.,infra, 18a (citing Zahrey, 221 F.3d at 344, 349) (em-phasis added and internal quotation marks omitted).The Eighth Circuit acknowledged that this reasoningwas "in tension, if not conflict, with" the Seventh Cir-cuit’s Buckley H decision. Ibid. (internal quotationmarks omitted).

Thus, in ostensibly denying qualified immunityfor procurement of false testimony during an investi-gation, the Eighth Circuit effectively abrogated abso-lute immunity for the use of that testimony at trial,thereby making petitioners potentially liable indamages for wrongful conviction and incarceration.

The Eighth Circuit refused to stay its mandate,and the case has now returned to the district court,where petitioners are being subjected to the burdensof time-consuming and expensive trial preparationsfrom which they would be shielded under ordinaryimmunity principles. Trial is scheduled to begin onAugust 3, 2009.

REASONS FOR GRANTING THE PETITION

This Court has recognized that prosecutorialimmunity is an "important and recurring issue."Imbler, 424 U.S. at 417; see also Van de Kamp v.Goldstein, 129 S. Ct. 855, 860 (2009) (calling prose-cutorial immunity a "serious" concern). "[T]he abso-lute immunity that protects the prosecutor’s role asan advocate is not grounded in any special esteem forthose who perform these functions, and certainly notfrom a desire to shield abuses of office, but because

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any lesser degree of immunity could impair the judi-cial process itself." Kalina v. Fletcher, 522 U.S. 118,127 (1997) (internal quotation marks and citationomitted).

The Eighth Circuit held that a prosecutor has noimmunity from suit where he allegedly procuredfalse testimony during an investigation, then intro-duced the same testimony at trial, resulting in apost-trial deprivation of liberty. The Eighth Circuitsupported that decision by finding a "substantive dueprocess" right against procurement of false evidence-- a right that, far from being "clearly established,"has no basis whatsoever in this Court’s precedents.This ruling widens and deepens a circuit split on acritical question of federal law, misapprehends boththe constitutional protections and the immunitiesapplicable at distinct stages of the criminal process,and violates this Court’s "function test" for prosecu-torial immunity.

The Eighth Circuit’s decision creates a dramaticand unprecedented new rule infringing prosecutorialimmunity, a rule whose ramifications extend far be-yond this case. Review is warranted to resolve a seri-ous conflict among the circuits and to prevent prose-cutors from being exposed to damages liability in vio-lation of this Court’s precedents.

I. The Eighth Circuit’s Decision Widens AndDeepens A Split Among The Circuits OnThe Critical Issue Of Prosecutorial Immu-nity.

The decision below squarely conflicts with au-thority from another circuit--the Seventh Circuit’sdecision in Buckley II--on a critical question of fed-eral law: whether a prosecutor (1) may be sued on al-

legations that he procured false testimony, and then(2) face liability for a wrongful conviction because heintroduced that same testimony at trial. What’smore, the decision below widens and deepens whathas become a multi-circuit split: the Eighth Circuitrelied on the Second Circuit’s Zahrey decision, whichitself had rejected Buckley II. Meanwhile, the ThirdCircuit has followed Buckley II.

The relevant facts in Buckley H are virtuallyidentical to the facts in this case. In Buckley II, theplaintiff, Stephen Buckley, alleged that prosecutorshad violated his constitutional rights by coercingfalse statements from third parties through use ofreward money, including co-defendant Rolando Cruz,then using this false testimony in Buckley’s indict-ment and trial. 20 F.3d at 794-795.

On the issue of procuring false testimony, theSeventh Circuit noted that Buckley had not beenable to identify "any case holding that this practiceviolates the Constitution. * * * His contention thatthe [reward money] payments [to witnesses] them-selves violate the due process clause does not state aclaim on which relief may be granted." 20 F.3d at794.

Let us suppose the prosecutors put Cruz onthe rack, tortured him until he named Buck-ley as his confederate, and then put the tran-script in a drawer, or framed it and hung iton the wall but took no other step, or began aprosecution but did not introduce the state-ment. Could Buckley collect damages underthe Constitution? Surely not; Cruz himselfwould be the only victim.

Id. at 795.

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If a prosecutor actually used such false testimonyin judicial proceedings, the Seventh Circuit went onto explain, then absolute immunity would shield himfrom a damages suit.

[I]f the constitutional entitlement is a rightto prevent use of the confession at trial (orbefore the grand jury), then absolute immu-nity under Imbler defeats Buckley’s claim.Obtaining the confession is not covered byimmunity but does not violate any of Buck-ley’s rights; using the confession could violateBuckley’s rights but would be covered by ab-solute immunity. * * * Prosecutors are enti-tled to absolute immunity for actions as ad-vocates before the grand jury and at trialeven if they present unreliable or wholly tic-titious proofs.

20 F.3d at 795 (citing Buckley v. Fitzsimmons, 509U.S. 259, 267 n.3 (1993); Burns v. Reed, 500 U.S.478, 489-490 & n.6 (1991)) (emphases in original).

In this case, the Eighth Circuit provided a muchdifferent analysis.

First, it said that a prosecutor’s procurement offalse testimony, without more, violates a criminal de-fendant’s "substantive due process rights." App., in-fra, 19a. Not only does this notion directly conflictwith Seventh Circuit law, but such a "substantivedue process" right against procurement of false evi-dence, far from being "clearly established," has nobasis in this Court’s precedents.

Then, drawing on the Second Circuit’s Zahreydecision, the Eighth Circuit reasoned that a prosecu-tor has no immunity where a ’"deprivation of liberty¯ * * can be shown to be the result of [the prosecu-

9

tor’s] fabrication of evidence’ where the prosecutorwas accused of both fabricating evidence and then us-ing the fabricated evidence at trial." App., infra, 18a(quoting Zahrey, 221 F.3d at 344, 349) (bracketed al-teration in original, emphasis added).

Although it nominally recognized that the countyattorneys in this case had absolute immunity fortheir use of evidence at trial, the Eighth Circuit ef-fectively abrogated that immunity by conflating pro-curement and use at trial into one undifferentiated"constitutional violation" that results in a post-trial"deprivation of liberty." App., infra, 17a-18a. This re-sult is completely at odds with the longstandingprinciple that a prosecutor may not be held liable indamages for a wrongful conviction based on actionshe took at trial.

The Eighth Circuit let stand the district court’sreasoning, drawn from the dissent in Buckley II, that"prosecutors should not be immune from § 1983 li-ability ’for their non-advocacy wrongful conduct if [aformer criminal defendant] can prove that indict-ment and trial would not have occurred in the ab-sence of the product of the wrongful conduct."’ App.,infra, 107a. But this conclusion too finds no supportin this Court’s precedents. Such but-for reasoningmight, at most, support a claim for wrongful institu-tion of criminal proceedings. But respondents havenot alleged malicious prosecution against petitioners,and even if they had, petitioners would be immune,because a prosecutor’s decision to initiate a prosecu-tion is shielded by absolute immunity. Imbler, 424U.S. at 421-424. Such speculative reasoning cannotbear the weight of the holdings below that procure-ment of false evidence during an investigation later"ripens" into a trial violation, thus exposing a prose-

10

cutor to potential liability for conviction and incar-ceration.

The circuit split in this case involves not just theSeventh and Eighth circuits, but the Second andThird circuits as well.

Like the Eighth Circuit here, the Second Circuitin Zahrey rejected the Seventh Circuit’s analysis inBuckley H and instead followed the Buckley H dis-sent. See Zahrey, 221 F.3d at 354-355. Zahrey in-volved a prosecutor who allegedly fabricated evi-dence against a New York City police officer for usein criminal and police disciplinary proceedings. Thetarget of the proceedings, Zaher Zahrey, was indictedand arrested based on the false evidence, but wassubsequently acquitted.

Zahrey announced what the Second Circuitcalled a "right not to be deprived of liberty as a resultof the fabrication of evidence by a government officeracting in an investigating capacity." 221 F.3d at 349.The Second Circuit reasoned that if a prosecutor fab-ricated evidence during the investigative phase of aproceeding, when he had only qualified immunity,then "it was at least reasonably foreseeable that inhis advocacy role he would later use that evidencebefore the grand jury, with the likely result thatZahrey would be indicted and arrested." Id. at 354.

The Second Circuit’s analysis essentially erasedthe important distinction between a prosecutor’s in-vestigative and advocacy roles--a distinction centralto what this Court has called the "functional ap-proach" to immunity. Burns, 500 U.S. at 486. TheZahrey court’s reasoning elides the fact that a prose-cutor is absolutely immune for presentations to agrand jury. Imbler, 424 U.S. at 430-431. Hence, it is

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irrelevant whether it was "reasonably foreseeable"that the prosecutor in Zahrey would place before thegrand jury false evidence that he had earlier pro-cured. In Zahrey, the Second Circuit bypassed the"functional approach" and carved out an exception tofundamental immunity principles based on nothingmore than an improvised and fallacious theory ofproximate cause.

Significantly, the deprivation of liberty in Zahreywas limited to the period between arrest and trial.Because Zahrey was acquitted and thus suffered nopost-trial deprivation of liberty, the Second Circuithad no basis to consider whether a prosecutor whoprocures false evidence could also, in effect, be heldliable for wrongful conviction and post-trial incar-ceration. Yet that is the context in which the EighthCircuit applied Zahrey here, exposing petitioners topotential liability for a murder conviction and a longperiod of incarceration.

While Buckley H has been rejected by the Secondand Eighth Circuits, it has been followed by theThird Circuit. In Michaels v. New Jersey, 222 F.3d118 (3d Cir. 2000), a criminal defendant alleged thather constitutional rights were violated when a prose-cutor and other investigators employed coercivetechniques against witnesses, then used the evidenceto obtain an indictment and conviction (which waslater reversed). Relying on Buckley II, the Third Cir-cuit said that the techniques used to interview thewitnesses "did not violate [the plaintiffs] constitu-tional rights," and that the prosecutor "was entitledto absolute immunity in offering the unreliable evi-dence." Id. at 122. Thus, the Eighth Circuit’s decisionin the present case also directly conflicts with lawfrom the Third Circuit.

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In summary, review is warranted to resolve whathas become a four-circuit split on a critical questionof federal law.

II. The Eighth Circuit’s Decision Cannot BeReconciled With This Court’s Precedents.

A. The decision below fails to analyze con-stitutional violations with particularity.

The Eighth Circuit and the district court theo-rized that when a prosecutor procures false testi-mony during a criminal investigation when he hasonly qualified immunity, such conduct works a "sub-stantive due process" violation, which the courts be-low apparently understood as an injury that beginsbefore a criminal defendant is even arrested, "ripens"into a § 1983 violation when the testimony is used attrial, and extends through a post-trial deprivation ofliberty. The only support from this Court’s cases of-fered for this proposition in either of the decisions be-low was the district court’s citation to Reno v. Flores,507 UoS. 292, 301-302 (1993). App., infra, 104a.Reno, however, had nothing to do with false evidenceor criminal proceedings but rather with an unsuc-cessfully asserted liberty interest on the part of de-tained juvenile aliens to be released into a ’"non-custodial setting.’" 507 U.S. at 302.

The decisions below fly in the face of this Court’steaching that constitutional violations must be de-scribed with particularity, then evaluated in light ofspecific constitutional guarantees.

Where immunity defenses are involved, "it is im-portant to determine the precise claim that [a plain-tiff] has made against [a prosecutor] concerning [theprosecutor’s] role in the" particular phase of thecriminal proceeding at issue. Burns, 500 U.S. at 487.

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Moreover "if a constitutional claim is covered by aspecific constitutional provision * * * the claim mustbe analyzed under the standard appropriate to thatspecific provision, not under the rubric of substantivedue process." United States v. Lanier, 520 U.S. 259,272 n.7 (1997); accord Albright v. Oliver, 510 U.S.266, 273 (1994) (plurality opinion) ("Where a particu-lar Amendment provides an explicit textual source ofconstitutional protection against a particular sort ofgovernment behavior, that Amendment, not themore generalized notion of substantive due process,must be the guide for analyzing these claims") (in-ternal quotation marks omitted). The Eighth Circuitfailed to perform this careful, particularized analysisof respondents’ alleged injuries.

First, it is highly doubtful that the act of procur-ing false testimony, in and of itself, is a "substantivedue process" violation, as the Eighth Circuit held.That is because there is "no authority for the propo-sition that the mere preparation of false evidence, asopposed to its use in a fashion that deprives someoneof a fair trial or otherwise harms him, violates theConstitution." Buckley, 509 U.S. at 281 (Scalia, J.,concurring).

In this case, respondents allege harms at twodistinct phases of the criminal process: that petition-ers (1) subjected them to wrongful arrest based onfalse testimony the county attorneys had procured,and then (2)wrongfully introduced that same testi-mony at respondents’ murder trials. Both of these in-juries fall under well recognized constitutional ru-brics. By lumping them together as one undifferenti-ated "constitutional violation," the Eighth Circuitfailed to "determine the precise claim[s]" and the

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immunity principles applicable to each injury. Burns,500 U.S. at 487.

If an investigating prosecutor uses false testi-mony to fabricate probable cause and thereby obtaina false arrest, that act may constitute an illegal sei-zure in violation of the Fourth Amendment. Albright,510 U.S. at 274 ("The Framers considered the matterof pretrial deprivations of liberty and drafted theFourth Amendment to address it"). In such circum-stances, the prosecutor would have only qualifiedimmunity. Buckley, 509 U.S. at 274 (prosecutor doesnot have absolute immunity "before he has probablecause to have anyone arrested"). But the injury fromsuch a violation is temporally limited. Damages forfalse arrest "cover the time of detention up until is-suance of process or arraignment, but not more.From that point on, any damages recoverable mustbe based on a malicious prosecution claim and on thewrongful use of judicial process rather than deten-tion itself." Wallace v. Kato, 549 U.S. 384, 390 (2007)(citation and internal quotation marks omitted).

Thus, in this case, should respondents’ false-arrest claim survive~. and should they be able toprove that the county attorneys had them arrestedbased on false testimony, petitioners could be subjectto trial and liability for respondents’ brief detentionfollowing their arrests, but nothing more. The scopeof the issues and evidence necessarily would besharply circumscribed and limited to the allegationsof false arrest. (Respondents have not alleged mali-cious prosecution against petitioners.)

2 The district court has not yet acted on petitioners’ pending

motion to dismiss the false-arrest claims on statute of limita-tions grounds, based on Wallace v. Kato, 549 U.S. 384 (2007).

15

By contrast, if a prosecutor knowingly introducesfalse testimony in judicial proceedings, that act con-stitutes a completely different constitutional viola-tion--a violation of the 14th Amendment’s guaranteeof procedural due process related to trial. Alcorta v.Texas, 355 U.S. 28, 31 (1957); Pyle v. Kansas, 317U.S. 213, 216 (1942); Mooney v. Holohan, 294 U.S.103, 112-113 (1935). Such a trial violation may, ofcourse, entitle a criminal defendant to post-conviction relief such as a new trial. See Napue v. Il-linois, 360 U.S. 264, 272 (1959). But absolute immu-nity applies with "full force" when a prosecutor en-gages in activities that are "intimately associatedwith the judicial phase of the criminal process."Imbler, 424 U.S. at 430. Such absolute immunity ap-plies even to the "willful use" by a prosecutor at trialof perjured or false testimony, id. at 431 n.34--precisely what respondents allege in this case.

Given this absolute immunity, the fact and con-sequences of any use that petitioners made of alleg-edly false testimony at respondents’ criminal trialscould not properly be an issue---indeed, it could notproperly be discussed or entered into evidence~inthe pending district court trial.

As a matter of simple logic, the only way peti-tioners’ alleged procurement of false testimony couldhave caused respondents’ convictions and post-trialincarcerations was through use of that testimony attrial. Yet neither the district court nor the EighthCircuit provided any authority from this Court that aprosecutor may be held answerable in damages forsuch a trial violation. Instead, the courts below sim-ply conflated procurement and use into one undiffer-entiated "constitutional violation" based on "substan-tive due process." The district court went astray in

16

its analysis (an analysis the court of appeals letstand) by pointing to precedents such as Mooney andNapue, which are about post-conviction relief for trialviolations, as support for the proposition that re-spondents had a "clearly established" right to seekdamages for an investigating prosecutor’s mere pro-curement of false evidence. App., infra, l14a.

The theory that procurement followed by use attrial of false testimony works one continuous consti-tutional violation also cannot be reconciled with thisCourt’s teaching that a discrete violation at an earlypoint in a criminal proceeding does not automaticallytrigger further constitutional harms at later stages ofthe process.

For example, in Wallace, this Court emphasizedthe difference between false arrest and torts relatedto prosecution and trial, and it explained that a falsearrest in violation of the Fourth Amendment doesnot "set the wheels in motion for [a] subsequent con-viction and detention." 549 U.S. at 391. By the sametoken, a prosecutor’s procurement of false testimony,even if that act were in itself a constitutional viola-tion, does not "set the wheels in motion" for a laterviolation at trial.

The notion that a prosecutor who procured falseevidence during an investigation must be answerablein damages for a post-conviction deprivation of lib-erty disregards any analysis of causation and the re-quirement that false testimony at trial must beevaluated for harmless error. See Arizona v. Fulmi-nante, 499 U.S. 279, 295 (1991); WAYNE R. LAFAVE,ET AL., CRIMINAL PROCEDURE 1110 (3d ed. 2000) ("Be-cause the Mooney principle is based upon the defen-dant’s right to a fair trial, the Court has refused to goso far as to hold that the knowing failure to correct

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false testimony produces a due process violationwithout regard to whether the false testimony waslikely to have had an impact upon the outcome of thetrial"). Under harmless error analysis, the weight ofevidence may support a conviction even though aprosecutor relied in part on false testimony that heprocured.3 Yet under the Eighth Circuit’s ruling, themere act of procuring false testimony not only sub-jects a prosecutor to suit, it potentially exposes himto damages liability for all the harmful consequencessuffered by the criminal defendant, including convic-tion and incarceration. Absolute immunity may notbe effectively abrogated based on such an overreach-ing conclusion.

In summary, the outcome below rests on a fun-damentally flawed premise: that a prosecutor may beheld liable for a wrongful conviction and detentionbecause the procurement of false testimony duringan investigation ’"ripen[s] into a § 1983 cause of ac-tion * * * by use of the perjured testimony at trial."’App., infra, 107a (quoting Buckley II, 20 F.3d at 800(Fairchild, J., dissenting)). This proposition directlyconflicts with this Court’s jurisprudence.

3 In this case, the Iowa Supreme Court vacated Harrington’s

conviction based not on the county defendants’ alleged pro-curement of false evidence or the role that evidence played attrial, but rather on a Brady violation for withholding of excul-patory evidence. Harrington v. State, 659 N.W.2d 509, 525(Iowa 2003). Because such a Brady violation occurs during thetrial process, the district court has held that the county defen-dants have absolute immunity from this allegation.

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B. The decision below violates this Court’s"function test" for prosecutorial immu-nity.

It is well established that a prosecutor does nothave absolute immunity during the investigativephase of a criminal proceeding, and that absoluteimmunity during the judicial phase does not "retro-spectively" immunize earlier wrongful acts. Buckley,509 U.S. at 276. But according to the Eighth Circuit’sruling, under which a prosecutor is answerable indamages for a wrongful conviction and incarceration,a prosecutor’s liability for procuring false testimonyduring an investigation (assuming that such an actviolates some constitutional right) spreads forwardand effectively abrogates absolute immunity whenthe prosecutor later introduces that testimony attrial.

This result contravenes the "functional ap-proach" to prosecutorial immunity this Court hasprescribed. Burns, 500 U.S. at 486; see also Buckley,509 U.S. at 273 (describing the "function test"). Thekey determinant for immunity is whether a prosecu-tor is performing a function that is "intimately asso-ciated with the judicial phase of the criminal proc-ess." Buckley, 509 U.S. at 270. Accordingly, a prose-cutor receives only qualified immunity when he "per-forms the investigative functions normally performedby a detective or police officer." Id. at 273. But thisCourt has "not retreated * * * from the principle thatacts undertaken by a prosecutor * * * which occur inthe course of his role as an advocate for the Statedare entitled to the protections of absolute immunity."Ibid. This rule is "categorical~." Kalina, 522 U.S. at126.

19

In Buckley, Justice Scalia anticipated the exactscenario presented here and explained why a crimi-nal defendant in such a case could have no claim ofany sort against a prosecutor.

Insofar as [Buckley’s claims] are based on[prosecutor]s’ supposed knowing use of fabri-cated evidence * * * at trial -- acts whichmight state a claim for denial of due process,see, e.g., Mooney -- the traditional defama-tion immunity provides complete protectionfrom suit under § 1983. If reframe[d] * * * toattack the preparation of that evidence theclaims are unlikely to be cognizable under§ 1983, since petitioner cites, and I am awareof, no authority for the proposition that themere preparation of false evidence, as op-posed to its use in a fashion that deprivessomeone of a fair trial or otherwise harmshim, violates the Constitution.

Buckley, 509 U.S. at 281 (Scalia, J., concurring) (cita-tions and internal quotation marks omitted, brack-eted alteration in original).

Petitioners do not dispute that the county attor-neys were functioning as investigators at the timethey allegedly procured false testimony against re-spondents; accordingly, only qualified immunity ap-plied. But since the mere act of procuring false evi-dence does not violate any "clearly established" con-stitutional right, petitioners can have no claim atthis stage. Later, when the county attorneys intro-duced that testimony at trial, they plainly were func-tioning as "advocate[s] for the State," and that con-duct was covered by absolute immunity. Thus, thereis no basis for any liability stemming from the al-leged false testimony.

2O

To hold, as the Eighth Circuit did, that a prose-cutor effectively forfeits immunity "where the prose-cutor was accused of both fabricating evidence andthen using the fabricated evidence at trial," App., in-fra, 18a, elides the functional analysis that thisCourt has mandated. It is simply an example of "al-low[ing] * * * particular policy concerns to erase thefunction test." Buckley, 509 U.S. at 274 n.5.

In summary, review is warranted because theEighth Circuit’s decision conflicts with this Court’sprecedents on fundamental points of constitutionalcriminal procedure.

CONCLUSION

The petition for a writ of certiorari should begranted.

Respectfully submitted.

JEFFREY W. SARLES

Counsel of RecordSTEPHEN SANDERS

VINCENT J. CONNELLY

LORI E. LIGHTFOOT

Mayer Brown LLP71 S. Wacker DriveChicago, IL 60606(312) 782-0600

Counsel for Petitioners

FEBRUARY 2009