mises.org / / July 19, 2017
Absolute Immunity for Prosecutors Creates the Classic “Lemons Problem”
Public officials argue that to be able to carry out their duties, laws must protect them from lawsuits by disgruntled individuals or those harmed by wrongful actions of government agents. The U.S. Supreme Court especially has protected prosecutors, granting them absolute immunity as long as they committed wrongful acts within the scope of their legal duties.
Advocates argue that unless prosecutors receive such drastic protection, those charged and sometimes convicted – guilty or not – will bury prosecutors under a blizzard of lawsuits for misconduct. Yet, as we see with the infamous Pottawattamie County vs. McGhee, one also can argue that prosecutorial immunity also create conditions for a legal version of a “Lemons Problem,” in which prosecutors are encouraged to present false information as being true and jurors and the public can be fooled.
In 1977, police and prosecutors in Council Bluffs, Iowa, desperately wanted to solve the murder of a former police officer there. The district attorney, David Richter, faced an election the next year, and he wanted to keep his job.
Despite having good evidence that led to the trail of the potential killer, Richter and police charged two black teenagers, Terry Harrington and Curtis McGhee, who lived in neighboring Nebraska, and tried them for murder. What followed was a nightmare for the two young men, one of whom was the captain of his high school football team. Richter, his assistant, Joseph Hrvol, and the police zeroed in on the two young men, even to the point of ignoring evidence that would have taken them elsewhere.
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