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Jack Bouboushian for Courthouse News reports that the 7th Circuit has repudiated efforts by a prosecutor to claim immunity in a civil case launched against him by a wrongfully convicted man. Nathsan Fields, who spent 17 years in prison for a 1985 double murder until his conviction was overturned, sued the two prosecutors that worked on his case, Lawrence Wharrie and David Kelley of Cook County, IL., for coercing witnesses to falsely testify against him.

Bouboushian writes,

“[Fields] said Wharrie, in particular, coerced false statements from a witness even before Fields was arrested in June 1985, and then later used these false statements as a prosecutor at trial. The district court initially granted the prosecutors immunity, but on reconsideration found that Wharrie is not shielded by qualified immunity for his investigative role in Fields’ case. Wharrie appealed, and a three-judge panel of the 7th Circuit upheld the ruling last week on a 2-1 vote.”

Judge Richard Posner wrote the majority for the 7th Circuit panel, calling Wharrie’s interpretation of the Court’s previous ruling in Buckley v. Fitzsimmons, which stated that prosecutors are entitled to absolute immunity when out-of-court acts cause injury only to the extent a case proceeds in court, but are entitled only to qualified immunity if the constitutional wrong is complete before the case begins, “offensive and indeed senseless.” Judge Posner writes:

“Wharrie is asking us to bless a breathtaking injustice. Prosecutor, acting pre-prosecution as an investigator, fabricates evidence and introduces the fabricated evidence at trial. The innocent victim of the fabrication is prosecuted and convicted and sent to prison for 17 years. On Wharrie’s interpretation of our decision in Buckley [v. Fitzsimmons], the prosecutor is insulated from liability because his fabrication did not cause the defendant’s conviction, and by the time that same prosecutor got around to violating the defendant’s right he was absolutely immunized.”

According to WBEZ 91.5 radio station, Fields won a Certificate of Innocence from a district court judge, which would assist his civil lawsuit. However, Cooks County State’s Attorney Anita Alvarez appealed the judge’s decision to grant the certificate and won. A final decision on the certificate is set to come out in February.



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