On April 20, 2020, the Third Circuit filed an opinion in Fogle v. Sokol (bit.ly/3bBcN5s). The case focused on the issue of prosecutorial immunity.
In 1976, a passerby discovered the body of fifteen-year-old Deann “Kathy” Long in a wooded area near her home in Indiana County, Pennsylvania. Kathy’s death involved a brutal assault, rape, and finally, a gunshot to the head. Law enforcement opened an investigation with representatives from the Indiana County District Attorney’s Office, including Gregory Olson and William Martin (“the Prosecutors”), and the Pennsylvania State Police (the “State Troopers”). The State Troopers soon learned from Kathy’s sisters and friends that, on the day of the crime, Kathy was last seen getting into a blue car with an unknown man. Two of her sisters, ages nine and twelve, described the man as between twenty and thirty years old, with blue eyes, black hair that came below his ears and curled at the ends, sideburns, heavy eyebrows, and a heavy mustache over his upper lip.
Lewis Fogle did not match the description–he had straight reddish-blonde hair that dropped down his back and a matching, full beard that reached his waist. But Mr. Fogle’s brother Dennis owned a blue car. A search of Dennis’s car found nothing of evidentiary value.
A year passed with little progress on solving the crime. With no fresh leads, the investigation turned to Earl Elderkin, known in town as ‘Spaceman,’ because he claimed that he and his kids were from outer space. Mr. Elderkin had drawn attention from law enforcement in the days after the murder because he fit the description of the unknown man in the blue car. Mr. Elderkin claimed to have been present during the attack. He offered an alleged eyewitness account, one short on details, perhaps owing to his use of drugs and alcohol. He confessed to being in the car that picked up a girl at the Long residence and witnessing an unidentified man shoot her with a rifle. But soon enough, Mr. Elderkin failed a polygraph examination, and the investigation slowed to a halt.
Three years later, while under hypnosis at a psychiatric hospital, Mr. Elderkin waffled between versions of his earlier statements and a new story implicating, for the first time, both Dennis and Lewis Fogle. During an interview with the State Troopers, Mr. Elderkin provided a firm statement naming the Fogle brothers as two of four attackers. That statement became the cornerstone of the investigation.
To advance their case, the State Troopers brought in Kathy’s older sister, Patty, and one of Patty’s friends, for a long interview. Eventually, under intimidation and threats of arrest, they altered their story to align with Mr. Elderkin’s latest story. Patty’s friend recanted her statement soon after leaving the police station.
By using the combined statements of Mr. Elderkin and Patty Long, and without disclosing the wide-ranging inconsistencies, the State Troopers obtained criminal complaints against the Fogle brothers and two others. Following hours of interrogation, threats, and a steady stream of suggestion in the form of details from Mr. Elderkin’s statement, Dennis Fogle confessed and implicated his brother Lewis. The next day, after even more questioning by Olson and the State Troopers, Dennis Fogle shaped his statement to fit with Mr. Elderkin’s most recent account.
Support soon arrived from jailhouse informants recruited and counseled by the State Troopers. Working collaboratively with law enforcement, and pursuing promises of leniency, two of Lewis Fogle’s cellmates claimed Mr. Fogle confessed to Kathy’s murder. Mssrs. Olson and Martin either knew about, encouraged or permitted this strategy. While the State Troopers characterized these statements as voluntary, they and the Prosecutors hid their role in pursuing the witnesses and their offers of favorable treatment.
Six years after Kathy’s murder, a jury found Lewis Fogle guilty of second-degree murder, leading to a sentence of life imprisonment without the possibility of parole. In 2015, Lewis Fogle obtained DNA evidence excluding both himself and his brother as the source of semen collected from Kathy. On that basis, after he had spent more than thirty years in prison, Lewis Fogle successfully vacated his conviction. Soon after, the Commonwealth declined to pursue new charges, describing the case as lacking prosecutorial merit.
Following his release, Mr. Fogle sued a host of individuals and entities including the State Troopers, Mssrs. Olson and Martin, as well as Indiana County. Mr. Fogle alleged that Mssrs. Olson and Martin violated his due process rights by fabricating inculpatory evidence and withholding exculpatory evidence, conspired to prosecute him without probable cause, and failed to intervene when others were violating his due process rights, all in violation of 42 U.S.C. § 1983. Mssrs. Olson and Martin moved to dismiss, arguing prosecutorial immunity insulated their conduct from review.
Mssrs. Olson and Martin did not deny Mr. Fogle’s allegations. Rather, these two kooks argued that the truth of Mr. Fogle’s claims does not matter, because, as prosecutors, they have absolute immunity from the defense of civil actions and the right not to stand trial.
The District Court disagreed and found that the Prosecutors were not immune because the conduct alleged by Mr. Fogle was investigative, centered on building a case that consistently lacked probable cause. The Third Circuit Court affirmed and wrote at length about prosecutorial immunity.
The Supreme Court has identified two kinds of immunities under § 1983: qualified immunity and absolute immunity. Most public officials are entitled only to qualified immunity. Under qualified immunity, government officials are not subject to damages liability for the performance of their discretionary functions when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
While the Supreme Court has extended the defense of absolute immunity to certain prosecutorial functions, it has not blanketed the actions of a prosecutor merely because they are performed by a prosecutor. Instead, to determine whether absolute immunity is warranted, courts must focus upon the functional nature of the activities rather than the prosecutor’s status. Applying this functional approach, the Supreme Court has emphasized that the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question. Indeed, the presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties.
The functional test separates advocacy from everything else, entitling a prosecutor to absolute immunity only for work intimately associated with the judicial phase of the criminal process. In that regard, the Court has found, for instance, prosecutors are immune from claims arising from their conduct in beginning a prosecution, including soliciting false testimony from witnesses in grand jury proceedings and probable cause hearings, presenting a state’s case at trial, and appearing before a judge to present evidence.
By contrast, a prosecutor’s investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity. Determining the precise function that a prosecutor is performing is a fact-specific analysis. For example, a prosecutor neither is nor should consider himself to be an advocate before he has probable cause to have anyone arrested. Before probable cause for an arrest, a prosecutor’s mission at that time is entirely investigative in character. A determination of probable cause does not guarantee a prosecutor absolute immunity from liability for all actions taken afterward, though. Even after that determination, . . . a prosecutor may engage in ‘police investigative work’ that is entitled to only qualified immunity.
Once asserted, the onus is on the prosecutor to demonstrate absolute immunity should attach to each act he allegedly committed that gave rise to a cause of action. Therefore, to earn the protections of absolute immunity, a defendant must show that the conduct triggering absolute immunity clearly appears on the face of the complaint.
Here, the Court of the Third Circuit concluded that Mssrs. Olson and Martin were absolutely immune for their alleged conduct in launching the prosecution against Mr. Fogle, failing to include information about Patty Long’s previous statements in their probable cause affidavit, withholding material exculpatory and impeachment evidence, and making misrepresentations to the court. But Mssrs. Olson and Martin were not entitled to absolute immunity for their alleged conduct in procuring Mr. Elderkin’s statements, Dennis Fogle’s confession, or the statements of the jailhouse informants.
