The Death Penalty and the Tort of False Imprisonment

Attorneys Claim Nebraska Man Imprisoned Iowa Detectives Framed 25 Years in Police Officers Death.

By accident lawyer Michael P. Ehline, Esq. Many of my readers know that I have struggled with the death penalty issue for quite some time. Although I agree a brutal killer deserves death, I have seen many historical examples from the U.S. and UK that casts doubt on the efficacy of capital punishment. For example, families in Brittain have sometimes fought over a hundred years to clear their family name after their ancestors had been falsely accused and put to death. (Click here).

False Imprisonment is a tort and defined as:

a direct restraint on someone’s free movement. It can be done with words, it could be done with threats, but basically false imprisonment is a situation where the person confined has no reasonable means of escape. (Source).

And like most torts, it can also form the elements of a crime. When the police or an accuser fabricate evidence to imprison someone, those false allegations can be used to prosecute the wrongdoers. However, in order to get compensation, besides Civil Rights statutes allowing for certain remuneration, victims can sue in civil court for the tort of false imprisonment.

This came full circle to me after the California Proposition to end the death penalty retroactively, was on my official absentee ballot. So I wanted to write about an example of how false evidence can cause a serious violation of rights, lead to the tort of false imprisonment, and expose why the death penalty is probably not a good idea in most cases.

Two Black Men Falsely Convicted of Murder Now Suing for One Hundred Million Dollars.

Two African American men who were wrongly convicted in the 1977 murder of a retired Iowa police officer told jurors on Thursday in a civil trial, the investigators in the case coerced witnesses into fabricating their testimony. Terry Harrington and Curtis McGhee were sent to prison for life in the shotgun killing of retired police captain John Schweer, who was working for local car dealerships as a security guard. Harrington and McGhee have filed a lawsuit against Council Bluffs, and two retired police investigators for over $100 million.

Harrington and McGhee were released from prison in 2003, after serving 25 years, after it was determined by the Supreme Court prosecutors committed misconduct. An agreement was reached by Pottawattamie County, who agreed to pay $12 million to settle the claims against the two former prosecutors, without admitting wrongdoing. The settlement did not involve the claims against Council Bluffs or the two white former detectives, identified as Dan Larsen and Lyle Brown.

The eccentric, Gerry Spence, Harrington’s lawyer, said in his opening statement to the jury, the evidence will prove the two officers “betrayed the oath they took as police officers and they betrayed their duty to protect us all.” Spence went on to say,  “If they can do it to the least of us, they can do it to anybody.” The allegations are being disputed by the city of Council Bluffs, stating that investigators had enough evidence against McGhee and Harrington to take it to prosecutors that led to their convictions.

The attorney for Larsen, and Brown, David Baker, said the officers were resolute in finding the responsible parties who killed Schweer, and it does not make sense for them to have framed someone else for the murder. Baker told jurors, “I believe the evidence before you will be that the very last thing my clients wanted to happen was for the true killer of Mr. Schweer to go free.” At their trials, Harrington and McGhee were convicted in 1978, in spite of little physical evidence.

Due to the pressure to resolve the retired police captain’s murder and because of their race, Harrington and McGhee, who were teenagers from neighboring Omaha, Nebraska, claim detectives in the case, used threats against a group of young black car theft suspects. This was done in order to fabricate evidence to target them.

It Appears the Police Ignored Evidence that Would Have Led to True Killers.

Anne Danaher, a prison barber, who befriended Harrington, believed his story that he was innocent. Danaher began investigating the case and learned that evidence in the police files would have led to another suspect that was not provided to their defense lawyers. Prosecutors were found to have committed misconduct in concealing reports about the other man that was spotted near the crime scene with a shotgun. Along with the recanted testimony by key witnesses, who claimed they were pressured into implicating Harrington and McGhee, by the Iowa Supreme Court.

McGhee’s lawyer Steve Davis told the jury, those police officers were supposed to be open-minded and follow every lead in a case. And that cops should not let their personal prejudice influence how they look at a case. Davis said they do not manufacture evidence to frame innocent people for a crime. City Attorney Kristopher Madsen said the two police officers followed proper investigation techniques.

So he asserted the officers considered other suspects until they had evidence connecting Harrington and McGhee to the car dealership, where Schweer was killed. Madsen said the jury would hear no credible evidence of coercion, frame-ups, kidnapping, or threats of terrorizing witnesses.

The City Attorney does not believe that most of the witnesses against Harrington and McGhee have recanted their testimony. Madsen said the jury will be asked to decide after hearing the evidence and facts over the next three weeks, which to believe or not. In any event, there certainly is evidence these men were innocent. What do you think? Had they been put to death and acquitted later, would that have been justice for anyone?


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Michael P. Ehline Esq,
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