A federal appeals court in Washington this week rejected the government's request that the entire court pick up and review a case in which a former grand juror is suing a prosecutor and a D.C. Superior Court official.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit in June sided in large part with the former grand juror, Peter Atherton, who government lawyers say was kicked off of a grand jury in 2001 for failing to follow rules and procedures.
The appeals court unanimously revived Atherton’s pro se suit against assistant U.S. attorney Daniel Zachem and D.C. Superior Court official Suzanne Bailey-Jones. The court reversed the dismissal of Atherton’s suit, saying that Zachem and Jones are not entitled to absolute immunity. The trial judge must determine whether the two officials are protected by qualified immunity. The government was seeking a rehearing of the panel decision.
Zachem, according to court papers, said several other jurors had complained about Atherton's behavior, and the prosecutor passed on that concern to Jones. Jones sent Atherton packing. Superior Court rules say only a judge has the power to dismiss a sitting grand juror. The chief judge learned about the Atherton’s dismissal after the fact. The former chief judge, Rufus King III, said in an affidavit in the case that the court took steps after the Atherton case to make sure that judges, and not court employees, were making decisions on dismissing sitting grand jurors.
Atherton said he was improperly removed because he was asking too many questions of the prosecution and demanding too much information about the crimes alleged. He told Legal Times that grand jurors were rushing through indictments without a complete understanding of the elements of the charges. In the appeals court, a Duke Law School student, Sarah Campbell, argued in the D.C. Circuit in March on behalf of Atherton's interests.