The case against section 1983 immunity for witnesses who conspire with a state official to present perjured testimony.

• Date: 01 June 1995
• Author: Zbytowski, Jennifer S.

INTRODUCTION

After spending nearly six years on death row for a crime he did not commit, Walter McMillian is now a free man. In December of 1987 he was indicted, along with Ralph Bernard Myers, for capital murder.(1) Although he held two jobs, had no history of violence, and had no record of serious crime, McMillian was accused of participating in the well-publicized slaying of a young woman.(2) On June 3,1987, McMillian's alleged accomplice, Myers, was arrested for the murder, and in a lengthy tape-recorded interview with the police he repeatedly denied any knowledge of McMillian's involvement in the crime.(3) Four days later, McMillian was also arrested for the murder. In an extraordinary move, McMillian was placed on death row before his trial had even begun.(4)

During the year before McMillian's trial, Myers told four state doctors on separate occasions that he felt pressure from the police to testify falsely against McMillian.(5) At McMillian's trial, in return for a promise that he would be permitted to plead guilty to a non-capital offense, Myers testified that he waited in a truck while McMillian committed the murder. Myers also testified that McMillian later made incriminating statements regarding the crime.(6) The only other evidence linking McMillian to the crime was the testimony of two witnesses who received money from the state for testifying that they saw McMillian's truck at the crime scene the morning of the murder.(7) Despite the lack of physical evidence and the testimony of a dozen witnesses claiming that he was at home the morning of the murder,(8) McMillian was convicted and sentenced to death.

After five unsuccessful appeals, the state of Alabama finally conceded that McMillian never should have been convicted.(9) Myers himself had admitted that police officers had told him what to say at McMillian's trial.(10) The other two prosecution witnesses also eventually recanted their inculpatory testimony.(11)

Following his release, McMillian filed a civil suit seeking redress for his harm.(12) In such a suit, a plaintiff is unlikely to succeed against the various state officials involved because police officers, prosecutors, and judges are generally protected against section 1983(13) damage suits by the doctrine of official immunity.(14) Therefore, whether witnesses are entitled to immunity for conspiring with state officials to present perjured testimony is of crucial importance to claimants like McMillian, because witnesses may be the only parties liable for damages under section 1983.(15)

It is impossible to determine how often witness-state conspiracies(16) to fabricate testimony actually occur, but a report on miscarriages of justice shows that approximately one-third of erroneous convictions studied were the result of perjured testimony by prosecution witnesses.(17) Those who have been victimized by a conspiracy to present perjured testimony often seek to recover their damages through section 1983,(18) one of the most widely invoked federal remedies today.(19)

Circuit courts disagree over whether to grant immunity to witnesses who conspire with a state official to present perjured testimony. Most courts that have been confronted with the issue have granted witness conspirators immunity, arguing that a section 1983 claim based on a witness-state conspiracy is equivalent to a claim based on witness testimony.(20) According to these jurisdictions, the Supreme Court has already settled the question of immunity for witness conspirators through its holding in Briscoe v. LaHue(21) that all witnesses have immunity with respect to claims based on their perjured testimony. A Seventh Circuit case illustrates this cursory approach. In House v. Belford,(22) the court disposed of the witness-state conspiracy claim by stating that the difference "between a conspiracy to present perjured testimony and the act of presenting perjured testimony is a distinction without a difference."(23) By interpreting Briscoe as creating blanket immunity for all acts of witnesses, the majority of circuit courts have not even attempted to utilize the Supreme Court's approach to section 1983 immunity.(24)

In contrast, the Second Circuit has recognized a distinction between witnesses, testimony and witnesses, conspiratorial acts involving testimony, and has held that witnesses, conspiratorial acts are not immune from suit under section 1983.(25) While the Second circuit has understood that Briscoe's holding was expressly limited to the substance of witnesses, testimony, it, too, has failed to employ fully the Supreme Court's approach to section 1983 immunity.(26) Instead, the Second Circuit has engaged only in an analysis of the policy implications of immunizing witness conspirators.(27) It has found that the reasons for granting immunity to witnesses are not applicable when witnesses conspire with state actors to present false testimony.(28) In addition, the Second Circuit has recognized that means other than immunity exist to protect honest witnesses from frivolous suits.(29)

This Note argues that witnesses who conspire with a state official to present perjured testimony at a judicial proceeding should not have absolute immunity from a section 1983 suit for damages. Part I provides background information on section 1983 and explains why a witness-state conspiracy satisfies the requirements of a section 1983 cause of action. Part I also summarizes the Supreme Court's doctrinal approach to section 1983 immunity. Finally, Part I examines two Supreme Court cases which are relevant to the issue of immunity for witness conspirators: Briscoe v. LaHue,(30) and Malley v. Briggs.(31)

Part II applies the Supreme Court's section 1983 immunity analysis to witness conspirators and argues that immunity should not be extended to their conduct. Historical research shows that the act of conspiring to present perjured testimony would not have been immune from suit at the time that Congress enacted section 1983 and there is no evidence that Congress intended to grant immunity to witness conspirators by enacting section 1983. Furthermore, public policy considerations weigh in favor of allowing section 1983 suits against witness conspirators.

1. WITNESS IMMUNITY UNDER SECTION 1983

   Section 1983 provides a federal cause of action against persons acting under governmental authority who have violated an individual's constitutional or federal statutory rights. Despite the broad remedial language of Section 1983, the Supreme Court has held that state officials are often immune from damages for the acts they perform. Two Supreme Court cases--Briscoe(32) and Malley(33)--address immunity for certain conduct of witnesses. Briscoe and Malley, however, do not indicate whether the conduct of witness conspirators is immune from a section 1983 damages action.

   1. The Operation of Section 1983

      "No federal statute is more important in contemporary American law than 42 U.S.C. 1983."(34) Section 1983 originated as section one of the Civil Rights Act of 1871, a statute designed by Congress to enforce the Fourteenth Amendment.(35) The language of section 1983 is broad enough to encompass every violation of federal law. It reads:

      Every person who, under color of any statute, ordinance, regulation,

      custom, or usage, of any State . . . subjects, or causes to be subjected,

      any citizen of the United States or other person within the jurisdiction

      thereof to the deprivation of any rights, privileges, or immunities secured

      by the Constitution and laws, shall be liable to the party

      injured. . .(36)

      Although dormant for ninety years, section 1983 is now widely invoked against defendants who have violated a person's federal rights while acting under governmental authority.(37) By providing a neutral federal forum, section 1983 has become an important means to check the conduct of state and local governments and officials. There are two elements of a section 1983 claim. First, the plaintiff must allege that a right provided by either the United States Constitution or by a federal statute has been violated.(38) Section l983 does not create substantive rights, but only establishes a civil remedy to enforce preexisting federal law.(39) Second, a section 1983 claim can only be brought against a defendant who has acted "under color of state authority."(40) In other words, a valid complaint requires a showing of some nexus between the acts of the defendant and state authority.(41)

      The Supreme Court has liberally construed the state action requirement of section 1983 so that a private person who conspires with a state official is considered to be acting under color of state law.(42)

      [A] private party involved in such a conspiracy, even though not an

      official of the State, can be liable under 1983. "Private persons,

      jointly engaged with state officials in the prohibited action, are acting

      `under color' of law for purposes of the statute. . . . It is enough that

      [the private person] is a willful participant in joint activity with the

      State or its agents."(43)

      Thus, when a private person conspires with a state actor to deprive an individual of federal rights, the private person essentially becomes a state actor.

      A claim that a witness conspired with a state official to present perjured testimony satisfies the requirements of a section 1983 cause of action: a federally protected right of the plaintiff has been violated under color of state law.(44) First, a person who has been harmed by a witness-state conspiracy has been deprived of liberty or property without due process of law, and, perhaps, has also been denied equal protection of the law.(45) Second, a witness-state conspiracy is performed under color of state law. Although witnesses do not act under color of state law merely by testifying at a judicial proceeding, the Supreme Court has explicitly recognized that witnesses who conspire with a prosecutor or other state official could satisfy the state-action...