A federal prosecutor and a D.C. Superior Court jury official are not entitled to absolute immunity in a suit filed by a man alleging constitutional violations stemming from his abrupt dismissal from a grand jury, the U.S. Court of Appeals for the D.C. Circuit ruled today.
The appeals court, ruling unanimously, ordered plaintiff Peter Atherton’s suit returned to the U.S. District Court for the District of Columbia for further proceedings. The appellate panel want the trial court to determine whether the prosecutor, Daniel Zachem, and the Superior Court official, Suzanne Bailey-Jones, are entitled to qualified immunity. A copy of the 29-page opinion is here.
In the D.C. Circuit, Duke University Law School student Sarah Campbell argued as an amicus curiae representing Atherton’s interests. Judge Brett Kavanaugh, after argument, called Campbell’s performance superb. Senior Judge Harry Edwards, writing for the panel in today’s opinion, said Campbell did a “fine job” during argument.
“We’re gratified by the decision and appreciative that the court allowed our students the opportunity to participate,” says Duke Law School senior lecturing fellow Sean Andrussier, a partner at Womble Carlyle Sandridge & Rice, in Raleigh, N.C. Andrussier, who co-chairs the firm’s appellate practice group, and Professor James Coleman Jr., a former Wilmer Cutler Pickering Hale and Dorr partner in D.C., run Duke Law School’s appellate litigation clinic.
Atherton was not immediately reached for comment today. A former nuclear engineer, Atherton was seated as a grand juror in Superior Court on April 9, 2001. He was removed two days later. Zachem said in an e-mail to Superior Court officials at the time that other jurors deemed Atherton disruptive—unable and unwilling to follow the rules. The jury foreman had complained to Zachem. Bailey-Jones, and not Zachem, dismissed Atherton.
Atherton, who filed suit in 2004, told The BLT earlier this year that he had been asking a lot questions of prosecutors—demanded information from prosecutors—in order to make informed decisions about whether or not to indict. Atherton said in his complaint that he was concerned that grand jurors were indicting individuals without first knowing the elements of the offense. Click here for a Legal Times story in March about Atherton's suit.
In Superior Court, only the chief judge or a designate judge can remove a grand juror. Richard Love, senior assistant attorney general for the District, argued that Bailey-Jones’ decision to toss Atherton was a quasi-judicial function and within her scope of duties. The D.C. Circuit disagreed, saying it was “clear” that Bailey-Jones was performing administrative functions when she dismissed Atherton from the grand jury. Assistant U.S. Attorney Judith Kidwell argued for Zachem.
Edwards, writing for the court, said Zachem’s role in the dismissal of Atherton is not protected by absolute immunity. Zachem’s actions, the judge noted, did not involve making a decision whether to prosecute an individual and, among other things, Zachem was not presenting evidence at trial or deciding what evidence to present to grand jurors.
“Absolute prosecutorial immunity, like judicial immunity, turns on the function performed by the prosecutor. And not all work done by prosecutors is covered by absolute immunity,” Edwards wrote.
The D.C. Circuit did not rule whether Atherton has a liberty interest in serving on a grand jury, and the court acknowledges that “whether the defendants in this case are entitled to qualified immunity on the due process claim is a challenging question."
Campbell, who calls her experience in Duke Law's appellate litigation clinic rewarding, graduated last month and is gearing up for a clerkship with Judge William Pryor Jr. on the U.S. Court of Appeals for the 11th Circuit. "It was a good way to end a law school career," Campbell says.