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U.S. Supreme Court

Associate Makes Supreme Court Debut in Prosecutor Immunity Case

Posted Nov 4, 2009 3:23 PM CDT
By Debra Cassens Weiss

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Lawyer Steve Sanders made his U.S. Supreme Court debut today arguing on behalf of prosecutors accused of conspiring to frame two murder suspects.

Sanders is an appellate litigator with Mayer Brown, but in an unusual twist, he is an associate rather than a partner. And it’s a paying case; a story in the Omaha World Herald says the Iowa county defending the suit paid $1.35 million in fees to Mayer Brown this year and more than $304,000 last year.

An Associated Press account of oral arguments (PDF) today says several justices appeared worried that allowing a civil rights lawsuit against two former Pottawattamie County, Iowa, prosecutors would have a chilling effect. The justices questioned whether suspects would be able to sue prosecutors simply because they didn’t like the verdict.

Sanders, who is considered a fourth-year associate because of a one-year federal appellate clerkship, says he expects to win the case, although he didn’t want to go so far as to predict the exact vote. “I don’t think it’s going to be one of the cases where it’s 9-0 either way,” he told the ABA Journal. At the same time, “I don’t think it’s going to be 5-4.”

At the end of the day, he predicted, the court will recognize that absolute immunity should be reaffirmed because of “powerful policy reasons” behind it.

The civil rights suit was brought by two black teens imprisoned for 26 years after they were convicted of killing a recently retired white police officer. The plaintiffs, Terry Harrington and Curtis McGhee Jr., claim prosecutors and police framed them with lies, threats and fabricated evidence, the ABA Journal reports in a November article.

The U.S. Supreme Court has held that prosecutors have full immu­nity from civil suits when presenting cases in court, but prosecutors have only qualified protection when they advise or assist police in their investigations. According to the ABA Journal's account of the argument for the prosecutors, "any sins against McGhee and Harrington were washed clean when they presented the evidence in court under absolute immunity."

Sanders, a graduate of the University of Michigan law school who previously worked in higher education administration, says he prepared for the case with five moot court sessions. He also prepared simply by living with the case for two years, volunteering to handle oral arguments before the St. Louis-based 8th U.S. Circuit Court of Appeals and proposing the Supreme Court appeal.

He credits the law firm’s “entrepreneurial culture” for allowing him to argue the case before the Supreme Court. “I think it was a show of faith on my ability and my knowledge of the case,” he said.

Asked when the Supreme Court will likely decide the case, Sanders said, “I’m hoping for a late Christmas present, but not expecting an early Christmas present.”

The case is Pottawattamie County v. McGhee.

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