A judge in Washington today dismissed a suit that a former grand juror filed against a federal prosecutor and a court official, saying the defendants are immune from liability for their role in removing the man from a panel that was hearing criminal cases in Washington.
The former juror, Peter Atherton, who for years had prosecuted his suit pro se, claimed the prosecutor and the D.C. Superior Court official unlawfully terminated his service for asking too many questions of prosecutors during the grand jury process. Fellow grand jurors, Atherton alleged, were too swiftly voting on cases without a full understanding of the law.
Atherton claimed the prosecutor, Daniel Zachem, an assistant U.S. attorney in the District of Columbia, and the court official, Suzanne Bailey-Jones, had no authority to end his grand jury service. Lawyers for Zachem and Bailey-Jones argued Atherton was disrupting the grand jury and that he was properly removed from the panel.
Only a judge, Atherton claimed in his suit, had the power to end his term. Neither defendant consulted a judge before Atherton was removed. The U.S. Court of Appeals for the D.C. Circuit in 2009 revived his suit, sending the case back to the trial court for a determination of whether Zachem and Bailey-Jones are entitled to qualified immunity.
U.S. District Judge Henry Kennedy Jr. said in a ruling today that Atherton’s suit, pending since 2004 in Washington federal district court, cannot proceed.
For Atherton to overcome the qualified immunity defense, Kennedy said he had to show that Zachem and Bailey-Jones violated a clearly established statutory or constitutional right.
The Superior Court rule in effect in April 2001, when Atherton was kicked off a grand jury, said that the chief judge or “other judge designated by the chief judge” may excuse a juror at any time for any reason.
Then chief-judge Rufus King III said in court papers in Atherton’s case that at the time, there was no process in place for disciplining jurors. Superior Court procedure has since changed, in the aftermath of the Atherton case, to require that the chief judge be consulted before any grand juror is removed from a panel. More background on Atherton's legal quest is here and here.
Kennedy said that even if a constitutional right existed at the time, Zachem and Bailey-Jones could not have reasonably known that their removal of Atherton violated a clearly established right. Zachem then was a supervisory federal prosecutor and not involved in presenting cases to grand jurors.
In his ruling, Kennedy pointed to the lack of formal procedures in Superior Court and the “apparent informal practice” of delegating grand juror removal decisions to the court’s juror office.
An attorney for Atherton, Foley & Lardner associate Benjamin Dryden, did not immediately comment on the ruling. It was not immediately known whether Atherton would seek an appeal. A spokesman for the U.S. Attorney's Office, William Miller, declined to comment.
Updated 1:50 p.m.