Yesterday we learned that the parties in Pottawattamie County v. McGhee, which was argued before the Supreme Court on Nov. 4 and posed a challenge to the court-created doctrine of “absolute prosecutorial immunity,” settled the case and agreed to have the Court dismiss it.

Pottwattamie concerned two African-American men, Terry Harrington and Curtis McGhee, who each spent 25 years in prison for the 1977 murder of a white man before their convictions were overturned by the Iowa Supreme Court following the revelation that Pottawattamie County prosecutors had fabricated evidence against them. Harrington and McGhee then brought a civil rights action against the prosecutors, which made its way to the Supreme Court after the 8th Circuit ruled in favor of the two wrongly convicted men that the prosecutors did not have absolute immunity from liability for their misconduct.  As reported by SCOTUSBlog, the settlement of the case involves a total payment of $12 million to Harrington and McGhee.

More details about this case, and its implications for constitutional text and history, are available here.  As we’ve discussed, the doctrine of absolute prosecutorial immunity is both difficult to apply and contrary to constitutional text and history; thus, the settlement and dismissal of this case  means the Court will not have the opportunity, at least not this Term,  to clarify its immunity jurisprudence – or, more important, to recognize the error of absolute immunity.

However, the parties’ decision to drop the case does leave in place the 8th Circuit’s decision in favor of Harrington and McGhee, which held that in this instance, the prosecutors did not have absolute immunity because the misconduct at issue occurred when the prosecutors were acting as investigators, rather than performing “prosecutorial functions.”  The press release issued by Harrington’s counsel presents an eloquent depiction of the injustices wrought by flagrant prosecutorial misconduct and the need for the Supreme Court to modify its jurisprudence so that more prosecutors will be held to account for constitutional misconduct.