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Justices weigh scope of prosecutorial immunity

Sanders said in a brief to the court that Richter and Hrvol would "vigorously" defend themselves against the charges should the case go to trial, but that it should never get that far. The court has said prosecutors have absolute immunity for their actions at trial, and Sanders and the government said the protection extends to pretrial actions as well.

The deprivation of liberty claimed by McGhee and Harrington, the former prosecutors contend, was a result of their conviction at trial, not of any pretrial activities.

There is no "free-standing due process right not to be framed," Deputy Solicitor General Neal K. Katyal agreed. Having to worry about a potential lawsuit when deciding whether to introduce certain evidence, Katyal said, might cause prosecutors to "flinch" from their duties.

Alito was supportive, saying witnesses in criminal cases were rarely innocent bystanders but often those who had changed their stories or cooperated with prosecutors to get a better deal. Those would be reasons for the convicted to bring lawsuits if prosecutors were not shielded, he said.

Alito and Roberts sparred with former solicitor general Paul D. Clement, who represented McGhee and Harrington. Clement said it made no sense that police officers could be liable for misconduct for pretrial actions but prosecutors playing the same investigative role couldn't be.

He mocked the idea advanced by the defense that a district attorney would have limited liability if he violated a suspect's constitutional rights before indictment but could not be sued if he used the manufactured evidence at trial.

He noted that McGhee and Harrington were suing under "one of the great civil rights statutes," and he tried to bring the debate back from the theoretical to the case at hand.

"Is it really plausible to think that the Congress that passed this statute didn't want to provide a remedy in the circumstances before the court today?" he asked.

The case is Pottawattamie County v. McGhee.

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