Sarah Campbell greeted the panel judges today and jumped right into presenting her case. By the time it was all over, more than 45 minutes later, Judge Brett Kavanaugh called the performance "superb"—not a bad compliment for a third-year law student making her debut in the U.S. Court of Appeals for the D.C. Circuit.
Campbell may have won a fan, but whether she won the case won’t be known for a bit.
Duke law professor James Coleman Jr. and a colleague, Sean Andrussier, an appellate litigation partner at Raleigh’s Womble Carlyle Sandridge & Rice, were tapped as an amicus to support the interests of D.C. resident Peter Atherton. Atherton, 63, said in a pro se federal complaint in 2004 that he was improperly kicked off of a D.C. Superior Court grand jury for being “disruptive.”
Five Duke law students, including Campbell, have been working on Atherton’s case since last fall. Coleman, a former partner at Wilmer Cutler Pickering Hale and Dorr, says the team organized itself like a firm. Andrussier and Coleman were partners and the students were the associates, researching and writing and editing briefs. Coleman says the students have done an "extraordinary job."
Atherton sued, among others, assistant U.S. attorney Daniel Zachem and D.C. Superior Court jury officer Suzanne Bailey-Jones. Zachem and Bailey-Jones, Atherton said, tampered with the indpedence of the grand jury. Jurors told Zachem that Atherton was refusing to follow the rules when it came to deliberating and voting.
A federal judge in the District tossed Atherton’s complaint in 2007, citing absolute immunity. Atherton is asking for $250,000 in damages—and he wants an apology.
D.C. Superior Court rules say the chief judge, or a designee, has the power to excuse a grand juror. In Atherton’s case, the chief judge was not included in the process when Bailey-Jones booted Atherton from the panel in April 2001. Then-Chief Judge Rufus King III said in an affidavit in the case that there was no formal process in place for juror discipline.
Today’s panel judges—Kavanaugh was sitting with Senior Judges Harry Edwards and Stephen Williams—were not shy about asking questions of Campbell and opposing counsel, including Richard Love, senior assistant attorney general for the District of Columbia. Right out of the gate, Williams told Campbell that qualified immunity is a “greater problem for you” than the more rare absolute immunity.
When Kavanaugh asked Campbell whether a prosecutor could be held liable for preemptory challenges during jury selection, she said her argument against immunity doesn’t extend that far. Campbell argued that rules in place at the time were clear—Bailey-Jones should have known she did not have authority to kick a sitting grand juror off of a panel.
Kavanaugh said he does not see a problem of vexatious litigation considering the dearth of cases involving grand jurors alleging wrongdoing. The D.C. Circuit has not weighed in on the issue.
On the briefs with Campbell were Duke students James McDonald, Eugenie Montague, Emily Sauter, and Eric Wiener.