Lawyers for a Washington man who was kicked off a grand jury are fighting the government's effort to dismiss his suit against a federal prosecutor and a D.C. Superior Court official, saying that neither defendant is completely insulated from liability.
Peter Atherton has been fighting the District and the Justice Department for six years in Washington’s federal district court, where he is seeking damages for what he calls his secret and unlawful removal from a grand jury. Atherton maintains only a judge had the power to remove him from the panel.
Last year, a federal appeals court in Washington sided with Atherton and sent the case back in the U.S. District Court for the District of Columbia for additional proceedings. On Tuesday, Atherton’s pro bono lawyers at Foley & Lardner filed court papers challenging the government’s effort to dismiss the suit [.pdf].
The Superior Court official, Suzanne Bailey-Jones, terminated Atherton’s service in 2001 based on alleged complaints from other grand jurors. A federal prosecutor, Daniel Zachem, relayed the complaints to Jones. Other jurors were concerned Atherton was disrupting the process—refusing to follow directions.
Atherton (at left) said in court papers and in interviews that he wasn’t disrupting. He wanted more information from the government to ensure the integrity of any indictment. The government, Atherton alleges, wanted the panel to indict for crimes that were not explained in an instruction book provided to jurors.
“Apart from Mr. Atherton’s statutory right to serve out his term as a grand juror, Mr. Atherton also has a fundamental right to serve his term as a conscientious and engaged grand juror, and not be fired for doing so,” Foley partner David Ralston Jr. said in court papers filed Tuesday evening.
Atherton’s attorneys said the court papers that his removal from the panel was “an incursion into the independence of the grand jury altogether.”
Lawyers for Jones argue she had the power to dismiss Atherton from the grand jury. And Zachem’s attorneys said he is protected from liability because he was performing his role as a prosecutor.