A former federal prosecutor and a District of Columbia court official want an appeals court to find them immune in a suit that alleges they violated the law in their successful effort to remove a grand juror from service for alleged disruptive behavior.
The grand juror, Washington resident Peter Atherton, contends he was kicked off a D.C. Superior Court grand jury panel for asking too many questions of prosecutors about the elements of cases. He claims other jurors were too hastily moving through cases.
Atherton sued in Washington's federal trial court, arguing that only a judge has the power to remove a grand juror—not a prosecutor or a Superior Court jury officer. The suit has lingered for years now. The U.S. Court of Appeals for the D.C. Circuit, which revived the civil rights action in 2009, re-examined the dispute again today. (Atherton lost in the trial court. The judge's opinion is here.)
The issue is whether the former assistant U.S. attorney, Daniel Zachem, and D.C. Superior Court jury official Suzanne Bailey-Jones, should enjoy qualified immunity. Their lawyers today told the appeals court that at the time Atherton was removed, in 2001, there was no clearly established right that would have put court officials and prosecutors on notice that their actions were unlawful.
Superior Court rules at the time of Atherton's service said the chief judge, or a designee, had the power to remove a grand juror. There were no procedures in place then to deal with such a situation, a lawyer for Bailey-Jones, Richard Love of the D.C. Office of the Attorney General, said today in court.
Atherton's court-appointed lawyer, Benjamin Dryden, an associate in the Washington office of Foley & Lardner, said Atherton at least should have been given a chance to tell his side of the story before he was removed. There was no hearing. There was no written explanation.
Dryden said Atherton, who has a science background, had been "aggressively" questioning prosecutors before he was removed. "He was asking reasonable questions, the right questions," Dryden said in court today.
Jurors complained that Atherton was unable or unwilling to follow the rules. Zachem alerted Bailey-Jones, who then dismissed Atherton from service. At no time was a judge consulted.
Judge Judith Rogers, who presided today with judges Janice Rogers Brown and Brett Kavanaugh, expressed concern over the ease with which a court official, without judicial oversight, was able to send a grand juror home.
Rogers said the removal of a sitting grand juror "seems fairly extraordinary given the role of the grand jury in the criminal justice system."
Kavanaugh's questions mostly explored whether the rights of grand jurors at the time were clearly established. The case, he said, turns on how clear those rights were. Kavanaugh said at one point Atherton faces a "high bar."
The appeals court didn't immediately rule this morning.