U.S. Supreme Court Takes Another Step Against Absolute Immunity for Prosecutors – Won’t Stop Dismissed Juror’s Suit Against Federal Prosecutor

 

Excerpted from The National Law Journal  May 20, 2010

 The U.S. Supreme Court this week declined to hear a case in Washington, D.C., where a federal prosecutor is being sued for his alleged role in improperly removing a grand juror from D.C. Superior Court.

The high court on May 17 rejected without comment the prosecutor’s petition for certiorari, which said the case presents an important issue of prosecutorial immunity. Most immunity cases involve a criminal defendant suing a prosecutor. In this case, a grand juror who was kicked off of a panel is suing a prosecutor.

The Supreme Court’s denial of the petition means the case will proceed in federal district court in Washington.

The grand juror, Peter Atherton, alleges he was removed from a grand jury for asking too many questions. Atherton filed suit against assistant U.S. Attorney Daniel Zachem, and others, in 2004 in the U.S. District Court for the District of Columbia. He is seeking a written apology and $250,000 in damages for alleged emotional trauma.

Other grand jurors said Atherton was disruptive, forcing follow-up votes on cases that had already been indicted. Atherton said the grand jury was racing through cases without a complete understanding of the elements of the offenses.

Zachem reported Atherton to a Superior Court official, who dismissed Atherton. Superior Court rules, however, say that only a judge has the power to remove a sitting grand juror.

Atherton won an early victory in the U.S. Court of Appeals for the D.C. Circuit. Then, last June, the appeals court sided a second time with Atherton. The court reversed the dismissal of Atherton’s due process claims, ruling that Zachem, a supervisor in the U.S. Attorney’s Office for the District of Columbia, is not entitled to absolute immunity. The court said Zachem’s action in reporting Atherton’s alleged disruptive behavior was not “intimately associated” with the criminal justice process.

Athertons attorney …Christian of Steptoe & Johnson said Wednesday the Supreme Court’s denial of the certiorari petition is a “re-affirmation of the principle that absolute immunity is not available for everything that a prosecutor does, and indeed is applied sparingly when it is not necessary to serve the public interest.”

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