Legal Commentary

Looking Forward After Pottawattamie County

By John Elwood

Yesterday the Supreme Court granted petitioners? motion to dismiss the writ of certiorari pursuant to Rule 46 in the spellcheck-challenging Pottawattamie County v. McGhee, 08?1065, which involved whether prosecutors who try a case are entitled to immunity when sued for allegedly procuring before trial false evidence to frame a criminal defendant. The motion, which petitioners filed December 30, and to which respondents evidently consented yesterday, was precipitated by a settlement in which the County and its insurers reportedly paid plaintiffs Terry Harrington and Curtis McGhee $12 million.   Harrington, who spent nearly 26 years behind bars, will get a little over $7 million, and McGhee (whose case may be marginally weaker because I seem to recall he pleaded guilty again after his first conviction was overturned) just under $5 million. 

While the settlement ends this case, this is not the last we?ve seen of this issue. Any other case which credibly presents the same issue will have an enhanced chance of being granted, because the Court has a demonstrated interest in the issue.  The facts of Pottawattamie County were particularly sympathetic, which made it more cert-friendly than the run-of-the-mine case; but at this point, I think the Court is interested in the issue and won?t need outrageous facts to grant.

When the Court is considering a case, it typically ?holds? other cases that present the same question pending the case?s resolution; when a case is dismissed for whatever reason after argument, the Court not infrequently chooses another case from among those being held and uses it as a vehicle for resolving the question.  The Court does not state on the docket that a case is being ?held?; instead, you typically see that a case has been assigned to a specific conference for consideration, and then there simply are no further docket entries. Thus, it is not particularly easy to find which cases on the Court?s docket are being held unless you happen to be watching a case as it moves through the system (or unless the government is a party to the case; its hold recommendations in non-IFP cases, which the Court typically follows, are available on the SG?s Office website). 

While I have compiled a list of cases I suspect the Court is holding pending resolution of cases on its merits docket, I am not aware of any cases being held for Pottawattamie County. Nor am I aware of any pending cases out there that present the same question. If you know of any, let me know in the comments. It?ll be interesting to see where this goes.

Full post as published by The Volokh Conspiracy on January 05, 2010 (boomark / email).