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No immunity for prosecutor accused of misconduct

Posted Jan 28, 2014 5:00 PM CDT
By Victor Li

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Hollywood couldn’t come up with a better script than this. A gang member was convicted in 1986 of double murder by two prosecutors who are now accused of coercing witnesses into giving false testimony against him; and he was sentenced to death by a judge who had taken a bribe from his co-defendant.

One of those two prosecutors will have to answer for his alleged actions after the Chicago-based 7th U.S. Circuit Court of Appeals ruled last week that he did not have immunity.

According to a Monday article at Courthouse News, a divided three-judge panel ruled that former Illinois assistant state attorney Lawrence Wharrie could be sued civilly by Nathson Fields, the man who was convicted in 1986 for the murders. Prosecutors generally have absolute immunity from civil suits for their actions during the course of a criminal prosecution, and the panel held that Wharrie’s co-counsel, former assistant state attorney David Kelley, was immune. Fields had spent 17 years in prison before he was acquitted during a retrial in 2009. (Thomas Maloney, the judge who presided over Fields' first trial, was convicted of taking bribes and sentenced to more than 15 years in prison, according to the Chicago Tribune. He died in 2008.)

“Wharrie is asking us to bless a breathtaking injustice,” 7th Circuit Judge Richard Posner wrote for the majority (PDF) . According to Posner, Wharrie could be sued because he was accused of acting outside of the boundaries of his job by performing an investigative role prior to the start of the prosecution against Fields. Kelley, on the other hand, was protected because his alleged actions took place while preparing for trial—when a prosecutor unquestionably has immunity.

Circuit Court Judge Diane Sykes dissented, arguing that the case law in the 7th Circuit was unclear as to the scope of prosecutorial immunity. Sykes pointed out that a recent 7th Circuit decision held that prosecutors might have qualified immunity even when coercing testimony. She argued that the law needed to be clarified.

Updated Jan. 30 to clarify lede.

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