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The Unintended Result of Ruling that Prosecutors Aren't Indemnified for Willful and Wanton Acts May End Up Protecting Prosecutors

The Unintended Result of Ruling that Prosecutors Aren't Indemnified for Willful and Wanton Acts May End Up Protecting Prosecutors

(This column first ran in the Chicago Daily Law Bulletin in June, 2013)

In the summer of 1986 a couple was found stabbed to death in a bloody and heinous crime that climaxed with the bodies and their Paris, Illinois home being burned. The couple was Karen and Dyke Rhoads.

As one of the many courts that eventually reviewed this murder and its subsequent prosecution noted, "From the ashes of these gruesome murders rises another, deeply distributing allegation: that police and a prosecutor conspired to frame two innocent men of these crimes, and over the course of the next two decades, state officials continued to cover up those misdeeds."[1]

One of the many sidebars to this riveting story is an Illinois Supreme Court decision May 23, 2013 that holds that the elected prosecutor sued in this case will not be indemnified by the state.

When it comes to being civil Defendants in Section 1983 cases, prosecutors are afforded more protections than law enforcement and other  targets of such lawsuits. In fact, they are almost always immuned from such suits. But, as a result of the ruling in McFatridge et al. v. Lisa M. Madian, no. 113676 (currently found at 2013 WL 2253166) there is one area where elected prosecutors are more vulnerable than most potential Section 1983 defendants—but it’s a vulnerability that may ultimately aid some elected prosecutors in Illinois.

Michael M. McFatridge was the Edgar County prosecutor that successfully convicted both Gordon “randy” Steidl and Herbert Whitlock of the murder of the Rhoads. After long and tortuous litigation, both convictions were eventually overturned--Whitlock’s in 2007 by the Illinois Appellate Court in People v. Whitlock, 374 Ill.App.3d 1144 (2007); and Steidl  in 2003 by a federal court in Steidl v. Walls, 267 F.Supp.2d 919 (C.D. Ill 2003).

What followed were federal civil lawsuits by both exonerated defendants. In the summer of 2007, the Seventh Circuit Court of appeals summarized the basis of the civil claim as such:  “[McFatridge] ignored evidence that would have demonstrated Steidl’s innocence, including especially a credible lead pointing to an influential Paris Businessmen...and based [the] case against Steidl on the coerced testimony of two unstable witnesses...no one turned over any exculpatory evidence against Steidl throughout his appeal, or post-conviction proceeding. Some of the available evidence would have shredded the state’s case...”[2]

The civil litigation continued unabated and included two interlocutory appeals until a watershed ruling by the Seventh Circuit in the spring of 2007 that erased any doubt that McFatridge was not going to be protected by prosecutorial immunity for his alleged role in the alleged framing of Steidl and Whitlock. In that case, Judge Diane Wood, who had written the 2007 opinion,  characterized the totality of the litigation in this manner “It has been nearly 25 years since Steidl and Whitlock were convicted of the Rhodes(sic) homicides. If their claims are true, a grave and nearly unbelievable miscarriage of justice occurred in Paris, Illinois...We find no reason to delay their day in court...any further.”

Steidl had his day in court in the form of a consent judgment entered in March of this year awarding a total of $6 million against multiple defendants. In March of this year Whitlock settled for an amount that was not publicly disclosed. Of the $6 million, to Steidl $1.65 million came in the form of an assignment of McFatridge’s indemnification claim against Illinois Attorney General Lisa Madigan.

While Steidl and Whitlock battled first the Edgar County prosecutors in criminal proceedings and then the attorneys representing the Edgar County Prosecutors in civil proceedings for more than a quarter century, McFatridge and Edgar County were battling the Illinois Attorney General for nearly a decade trying to get indemnification  pursuant to a state statute that allows the Attorney General to represent elected officials.

After its own torturous road through litigation with ups and downs, the question of whether the state would pay McFatridge’s attorneys fees was decided by a unanimous Illinois Supreme Court. That Court so that “the plain language” of the state’s indemnity statute allows the state to decline to represent a prosecutor where “the claim is for intentional, willful, or wanton misconduct.”

The practical result of the ruling, however, is that Steidl appears to be out the $1.65 million he had hoped to collect if  McFatridge prevailed.

While it’s unclear if McFatridge himself is worse off because of this ruling, other prosecutors may end up better off. It is the fee shifting statute that provides much of the incentive for plaintiffs attorneys to bring cases against prosecutors. Obviously in a case such as Steidl’s where nearly two decades of his life was lost to wrongful conviction, the fee shifting was much less of an incentive. But most cases brought are do not involve such large damages.

Given that most claims against prosecutors will only survive immunity in very limited circumstances that must necessarily include intentional or willful and wanton conduct, that they will not be indemnified for attorney fees, including likely the fees of Plaintiff’s counsel.

[1] Whitlock v. Brueggemann, 682 F.3d 567, 570 (7th Cir. 2012).

[2] Steidl v. Fermon, 494 F.3d 623, 626 (7th Cir. 2007).


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