There was an editorial in this morning’s New York Times that reminded me of a lecture I wanted to attend the other day put on by Professors Frank Deale and Steve Zeidman on Pottawattamie County v. McGhee, Docket No.: 08-1065 (argued Wednesday, November 4, 2009), a case now before the Supreme Court on prosecutorial misconduct. The title of the editorial piqued my interest: “Are You or Have You Ever Been a Lawyer?” Liz Cheney and now Sen. Chuck Grassley and others are trying to make an issue of current Justice Dep’t employees who represented detainees at Guantanamo prior to being appointed to DOJ.
Pottawattamie County v. McGhee raises the question: “May a criminal defendant sue a prosecutor for presenting false testimony in order to wrongfully convict the defendant?” Arguing on behalf of the United States Gov’t in — that prosecutors should retain full immunity in such cases — is the Obama administration Deputy Solicitor General Neal Katyal. Katyal, a Georgetown law school professor, happens to have represented detainees at Guantanamo prior to his current DOJ position, in fact arguing on behalf of detainees in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (the landmark case in which the Bush administration procedure for military commissions to try Guantanamo detainees was struck down by the Supreme Court). In Pottawattamie County, “prosecutors fabricated evidence when investigating a murder, and later used that evidence to convict two teenagers who were ultimately released when their convictions were overturned 25 years later. The prosecutors were then sued for damages. In response, they argue that the fabrication of evidence is only unconstitutional when it used at trial and the use of fabricated evidence at trial is protected by absolute immunity.”
Incidentally, the Obama administration has taken a number of these surprising, or perhaps not surprising, positions tracking the Bush administration, e.g. following the Bush admin policy on state secrets which is a fascinating Supreme Court history in an of itself (U.S. v. Reynolds, 345 U.S. 1 (1953)). This American Life ran a piece on Reynolds, the case that gave rise to the modern state secrets privilege, interviewing Barry Siegel, author of Claim of Privilege, and Judy Loether, who lost her father in the B-29 crash that formed the plaintiffs’ underlying tort claims in the Reynolds litigation.
One other quirk about Pottawattamie County: the attorney arguing on behalf of the two convicted was Paul Clement, a former Bush solicitor general who argued against Katyal in Hamdan v. Rumsfeld, supra. How about that for the good ole’ boys network?
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Some historical perspective on representation of unpopular defendants, in the wake of several prominent Republican lawyers calling Liz Cheney’s campaign “a shameful series of attacks.”