Federal prosecutor Daniel Zachem has a lot riding on a pro se civil suit against him that alleges he participated in a conspiracy to violate the rights of a D.C. Superior Court grand juror.
But the suit has far-reaching implications for all federal prosecutors, and so Zachem’s lawyer wants the U.S. Supreme Court to pick up the case and reverse an appellate ruling this year that narrowed the scope of prosecution immunity from suit.
Zachem’s attorney, Michael Martinez, a partner at Crowell & Moring in D.C., said this week he is planning to file a petition for certiorari in January. Justice John Paul Stevens this month extended the deadline, which had been Nov. 23.
Zachem, an assistant U.S. attorney in D.C., “has determined that this is a case important enough, both personally and professionally, that it warrants a petition for certiorari,” Martinez said in court papers filed in the Supreme Court (.pdf) this month. “Indeed, the case presents important issues regarding the parameters of the absolute immunity defense for prosecutors.”
Martinez said in an interview that a ruling earlier this year in the U.S. Court of Appeals for the D.C. Circuit eroded prosecution immunity. At issue is the extent to which Zachem was acting within his authority as a prosecutor when a grand juror was removed from a panel. The D.C. Circuit, in reviving the suit, held that Zachem is not entitled to absolute immunity. “The D.C. Circuit got it wrong,” said Martinez, whose attorney fees are being paid by the Justice Department. Zachem retained Martinez earlier this year for the purposes of pursuing a cert petition.
Zachem was the supervising assistant U.S. attorney for a grand jury sitting in D.C. Superior Court in April 2001. Zachem got word from other grand jurors, including the foreman, that a grand juror named Peter Atherton was being disruptive. Zachem met with a group of jurors and then relayed the complaint to Suzanne Bailey-Jones, the D.C. Superior Court jury officer. (The D.C. Office of the Attorney General continues to represent Bailey-Jones.)
Zachem confiscated Atherton’s notes and told him to report to Bailey-Jones, who dismissed Atherton as a grand juror for his alleged disruptive behavior.
D.C. Superior Court rules at the time said only the chief judge, or a designate judge, can remove a grand juror. The chief judge at the time, Rufus King III, was never notified about Atherton’s alleged disruption. Atherton filed suit in 2004 against Zachem, Bailey-Jones and others.
Atherton, a former inspector for the U.S. Nuclear Regulatory Commission, said he drew criticism from fellow jurors because of his persistent questioning—demanding more and more information from the prosecution. In court papers, Atherton said jurors were voting on charges without fully knowing the elements of the crime. He said in an interview that he refused to rubberstamp indictments.
A motion to dismiss was granted. On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed. Atherton was pro se on appeal. On remand, the case was again thrown out in the federal district court.
Atherton pursued a second appeal with the assistance of the Duke Law School appellate litigation clinic, and the D.C. Circuit again revived the suit.
The court said this year that Zachem and Bailey-Jones are not entitled to absolute immunity. The appeals court remanded for further proceedings over whether Zachem and Bailey-Jones are entitled to qualified immunity. The D.C. Circuit declined to rehear the case, and the court rejected en banc review. Atherton remains pro se.
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