An appellate court ruling in Washington that said a prosecutor is not entitled to absolute immunity in a suit brought by a former grand juror should be reviewed and reversed by a full court, a Justice lawyer said in court paper challenging the decision.
The U.S. Court of Appeals for the D.C. Circuit revived the former grand juror’s suit, which alleges that an assistant U.S. attorney and a D.C. Superior Court jury official improperly removed him from a grand jury in 2001 without the consultation of a judge.
The appeals court ruled in June that the prosecutor, Daniel Zachem, and the jury official, Suzanne Bailey-Jones, are at most entitled to qualified immunity. The court remanded the case to federal district court in Washington for further proceedings. Justice lawyers are seeking a panel rehearing or a rehearing en banc.
“The panel’s holding and decision rationale substantially narrow the scope of a prosecutor’s absolute immunity,” a Justice appellate lawyer in the Civil Division, Jeffrey Clair, said in a brief filed in late July. Clair said the panel decision in June presents a question of exceptional importance. Atherton is pro se. (A Duke Law School student argued on his behalf as an amicus.)
Atherton was participating on a grand jury in D.C. Superior Court in 2001 when he several other grand jurors said he was a disruption, unwilling and unable to follow the rules. Atherton said he was a methodical juror, demanding as much information as possible from the prosecution before deliberation on whether to indict.
Zachem, a supervisor, presented the complaints to Bailey-Jones, who summarily told Atherton his service was no longer needed. There has been a rule in Superior Court in place for years that says only the chief judge, or a designate judge, can remove a grand juror. Atherton said Zachem and Bailey-Jones violated due process rights.
Clair, the appellate lawyer, said Zachem is entitled to absolute immunity because in reporting the complaints to Bailey-Jones “the defendant prosecutor was acting to further the core prosecutorial function of ensuring meaningful grand jury consideration” of the evidence. Only a prosecutor can collect and present complaints of grand jurors to the court, Clair said.