Martin A. Schwartz ()
Wrongful convictions continue to plague the criminal justice system. Studies have identified prosecutorial misconduct as one of the causes of wrongful convictions.1 This misconduct is most frequently a prosecutor’s failure to comply with the Brady2 due process obligation to disclose exculpatory material to the defense. In some cases the misconduct consists of a prosecutor’s creation and use of fabricated evidence against the defendant.
Despite the obvious egregiousness of prosecutorial creation and use of fabricated evidence, wrongfully convicted defendants who seek to recover damages under 42 U.S.C. §1983 against a miscreant prosecutor typically have to overcome numerous obstacles, including prosecutorial immunity and proximate causation.
Prosecutors are absolutely immune from money damages under §1983 when carrying out their advocacy functions, but normally are not absolutely immune for carrying out investigatory and administrative functions. And, even when a prosecutor is not shielded by absolute immunity, the §1983 plaintiff would have to show that the prosecutor’s creation or use of the fabricated evidence was a proximate cause of the wrongful conviction.
In Fields v. Wharrie,3 the U.S. Court of Appeals for the Seventh Circuit recently held, 2-1, that a prosecutor may be held liable under §1983 for fabricating evidence which the prosecutor used against a wrongfully convicted criminal defendant. Judge Richard A. Posner (joined by Judge Joel M. Flaum) wrote the opinion for the court. Judge Diane S. Sykes dissented.
The §1983 plaintiff, Nathson Fields, alleged that he was wrongfully convicted in the Circuit Court of Cook County, Ill., of two murders and served 17 years incarceration. Fields claimed that before he was arrested, prosecutor Lawrence Wharrie coerced witnesses to give testimony Wharrie knew to be false. Wharrie was one of the trial prosecutors who introduced the fabricated evidence at Fields’ trial. Fields ultimately received a certificate of innocence from the Cook County Circuit Court.
The court in Fields clarified the distinctions among “coerced testimony,” “fabricated testimony” and “false testimony.” “Coerced testimony is testimony that a witness is forced by improper means to give; the testimony may be true or false. Fabricated testimony is testimony that is made up, it is invariably false,” and “[f]alse testimony is the equivalent” of fabricated testimony, “it is testimony known to be untrue by the witness and whoever cajoled or coerced the witness to give it.”4Fields involved fabricated testimony.
Because prosecutor Wharrie’s alleged procurement of false statements from a prospective witness occurred a month before Fields’ arrest, Wharrie was at that time engaged in investigatory conduct, which is not shielded by absolute prosecutorial immunity.5 However, this investigatory conduct did not itself harm Fields. In Buckley v. Fitzsimmons6 the Seventh Circuit held that a §1983 plaintiff could not base his claim on a prosecutor’s investigatory actions in coercing witnesses to testify against him “because until the evidence obtained by the improper acts was introduced at his trial he had not been injured and therefore no [constitutional] tort had been committed.”7 In other words, Buckley “rests on the principle that there is no [constitutional] tort without an actionable injury caused by the [§1983] defendant’s wrongful acts.”8
A criminal defendant, however, suffers injury if fabricated evidence is used to help indict or convict him. In Fields the fabricated evidence was used both to indict and convict Fields.9 The distinction between coerced and fabricated is important because coerced testimony may be true and, if it is, the coercion itself does not injure the criminal defendant; only the coerced witness is injured by the coercive action.10Fields, however, involved fabricated evidence, and this evidence was used to indict and convict Fields.
Causation and Immunity
Although a prosecutor’s use of fabricated evidence to indict or convict a criminal defendant clearly causes injury, the question is whether the criminal defendant has a valid §1983 claim to redress this injury. The answer depends primarily upon an evaluation of proximate causation and prosecutorial immunity, remembering that a prosecutor’s decision to use fabricated evidence to indict or convict is an advocacy function shielded by absolute prosecutorial immunity.
The circuit court in Fields indicated that resolution of these causation and immunity issues is dependent, at least in part, on whether the prosecutor who fabricated evidence in an investigatory role is the same prosecutor who used that evidence to indict or convict, or whether some other prosecutor used the evidence for those purposes.
The circuit court in Fields in dicta suggested that if prosecutor A fabricated the evidence in an investigatory role, but the trial is handled by prosecutor B who, knowing the evidence was fabricated, decided to use it anyway, at least under some circumstances prosecutor A might not be liable for the fabrication of the evidence:
[S]uppose [fabricating prosecutor] A has second thoughts about what he did, and tells [prosecutor] B not to use the evidence [,] but B goes ahead and uses it. It can be argued that A should not be regarded as having caused the use of the evidence at trial….B is protected from suit by his absolute immunity, thus leaving the victim of the fabricated evidence without a complete damages remedy. He would have a partial remedy against A, if A’s fabrication had inflicted harm against him before the trial, as by causing him to be indicted….11
The circuit court referred to leaving the victimized plaintiff without a remedy as the “tough luck” rule.12 It is also a classic “Catch-22.” Plaintiff cannot recover against the fabricating prosecutor because the fabrication itself did not cause injury, and cannot recover against the trial prosecutor because of absolute prosecutorial immunity. Whether termed “tough luck” or “Catch–22,” let’s not forget that there’s a real human being who was wrongfully convicted and incarcerated because of the unconstitutional conduct of a public official. Fortunately, as we will see, the circuit court in Fields carved out an important exception to this “Catch-22″ predicament.
Although the court in Fields mentioned the possible significance of prosecutor A having told prosecutor B not to use the fabricated evidence, it did not resolve that issue. It would seem that whether or not prosecutor A made such a request, the issue is whether prosecutor A’s fabrication of evidence utilized by prosecutor B to indict or convict is a proximate cause of the §1983 plaintiff’s injuries. This depends upon whether indicting or trial prosecutor B’s exercise of her independent judgment to use the evidence was an intervening cause which broke the chain of causation and absolved prosecutor A of liability. The answer may depend on the particular facts and circumstances.
These causation issues were not present in Fields because fabricating prosecutor Wharrie was also one of the trial prosecutors. The difficult issue in Fields was not causation, but prosecutorial immunity because, while a prosecutor is not absolutely immune for investigative production of fabricated evidence, a prosecutor is absolutely immune for carrying out her advocacy function of presenting evidence at trial, even if the evidence was fabricated.
Wharrie argued that he was “insulated from liability” because his fabrication did not violate Fields’ constitutional rights, and that any violation of his rights from introducing the evidence at trial is “absolutely immunized.”13 The circuit court, however, refused to apply this “tough luck” rule and “bless a breathtaking injustice” by immunizing a prosecutor who caused a wrongful conviction and lengthy prison term.14 The reality is that prosecutorial immunity is invoked by the courts to bless “breathtaking injustices” with some regularity. But not in Fields v. Wharrie!
Holding and Dissent
In rejecting Wharrie’s argument, the circuit court reasoned that his fabrication of the evidence was investigative conduct that proximately caused the violation of Fields’ constitutional rights when Wharrie introduced the fabricated evidence at trial. The circuit court articulated the controlling principle: “A prosecutor cannot retroactively immunize himself from conduct by perfecting his [investigatory] wrongdoing through introducing the fabricated evidence at trial and arguing that the tort was not completed until a time at which he had acquired absolute immunity.”15
The circuit court also held that Wharrie was not protected by qualified immunity, because his actions violated Fields’ clearly established due process rights. The U.S. Supreme Court decisions in Napue v. Illinois,16Pyle v. Kansas,17 and Mooney v. Holohan,18 have long established “that a government lawyer’s fabricating evidence against a criminal defendant [violates] due process.”19
The dissent acknowledged the obvious unjustness of a wrongful conviction;20 that prosecutor Wharrie “behaved deplorably;”21 and that prosecutorial immunity “can sometimes produce harsh results,” although it has been viewed as “necessary to encourage and protect the vigorous performance of the prosecutorial function.”22 The dissent opined that the court should have followed the Buckley, “tough luck” approach that (1) a prosecutor’s investigatory fabrication of evidence is not actionable, and (2) a prosecutor’s use of the fabricated evidence at trial is shielded by absolute prosecutorial immunity.
Further, the dissent found that the Supreme Court’s decisions in Napue, Pyle and Mooney “do not hold that fabricating evidence violates due process,” but rather “hold that the use of falsified evidence or perjured evidence at trial violates the defendant’s due process right of a fair trial and is grounds for habeas or other post-conviction relief.”23
In the author’s view the circuit court’s decision affording Nathson Fields a meaningful §1983 remedy for his wrongful conviction and incarceration is a step in the right direction. At the same time it is troubling that Fields’ right to pursue his claim for damages was based on the fortuity that the fabricating prosecutor was also one of the trial prosecutors. Should the circuit court’s decision ultimately hold up, a fabricating prosecutor seeking to take refuge in the “tough luck” rule may try to avoid participating in the trial.
On March 25, 2014, the Seventh Circuit denied defendant Wharrie’s petition for rehearing en banc. In the author’s view the issues in the Fields case warrant U.S. Supreme Court review. Should that occur, hopefully the Supreme Court will align itself with Judge Posner’s opinion.
Martin A. Schwartz is a professor at Touro Law Center and author of a treatise on Section 1983 litigation (Aspen Law Publishers).
1. Brandon L. Garrett, Convicting the Innocent, pp. 207-209 (Harv. Univ. Press 2011); Final Report of New York State Bar Association’s Task Force on Wrongful Convictions (April 4, 2009).
2. Brady v. Maryland, 373 U.S. 83 (1963).
3. 740 F.3d 1107 (7th Cir. 2014).
4. Id. at 1110.
5. See Buckley v. Fitzsimmons 509 U.S. 259, 273-76 (1993).
6. 20 F.3d 789 (7th Cir. 1994).
7. Fields, 740 F.3d at 1111.
8. Id. at 111 (citing Buckley, 20 F.3d at 796).
9. Buckley v. Fitzsimmons involved coerced testimony, while the Seventh Circuit’s more recent decision in Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012) concerned fabricated evidence.
10. See Fields, 740 F.3d at 1112 (“If the evidence obtained by coercion is sound and the defendant would have been indicted, found guilty, and sentenced without it (though in fact he was innocent), the only victim of government misconduct is the witness who was coerced; and that is not Fields).”)
11. Fields 740 F.3d at 1112 (citations omitted)
12. Id. at 1113.
14. Id. at 1113.
15. Id. at 1114.
16. 360 U.S. 204 (1959).
17. 317 U.S. 213 (1942).
18. 294 U.S. 103 (1935).
19. Fields, 740 F.3d at 1114.
20. Id. at 1123 (Sykes, J., dissenting).
21. Id at 1121.
22. Id. at 1120 (citations omitted).
23. Id. at 1123.