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.
The appeals court remanded the case, for a second time, to the trial court for further proceedings. In the D.C. Circuit, the Duke Law School appellate litigation clinic represented Atherton's interests.
Earlier this year, Zachem's lawyer, Michael Martinez, a partner in the Washington office of Crowell & Moring, urged the Supreme Court to review the appellate court's decision. Martinez said in the petition for certiorari that the high court should resolve conflicts among the federal appellate courts.
"This is an issue of critical importance to the sound functioning of the criminal justice system, and if left undisturbed, the ruling below will have a potentially harmful and lasting impact on every prosecutor in the country who interacts with grand juries," Martinez said in court papers.
Martinez said the appellate ruling "erodes vital protections" for prosecutors and that the court's decision "will likely influence the conduct of every prosecutor in the United States with involvement before grand juries." Martinez was not immediately reached for comment Wednesday.
In response to the petition, Atherton's lawyers -- including Steptoe & Johnson partner Betty Jo Christian and the American Civil Liberties Union's Arthur Spitzer -- said in court papers in April that the facts of the suit are unique. Atherton's lawyers urged the Supreme Court to deny the petition.
"No similar case has been identified, and the juror dismissal situation giving rise to this case is unlikely to recur," Atherton's lawyers said. "Nothing about this case suggests that it will expose prosecutors to vexatious litigation."
Zachem's lawyers at Crowell said in court papers filed April 26 that while the precise facts might not recur, it's possible to imagine a "future disgruntled person connected with the grand jury process -- whether a dismissed grand juror or otherwise -- suing a supervisory prosecutor" for an alleged wrong.
"In that context," Martinez wrote, "this is an issue of national import that requires the court's attention."
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."