Lawyers for Federal Prosecutor Pitch Immunity Case to Supreme Court

Mike Scarcella

The National Law Journal

A federal prosecutor in Washington who is being sued for his alleged role in the removal of a local grand juror wants the U.S. Supreme Court to reverse a federal appeals court ruling that went against the government.

Lawyers for the prosecutor, Daniel Zachem, an Assistant U.S. Attorney in the District of Columbia, filed a certiorari petition Jan. 22 asking the Court to examine the case to resolve conflicts among the federal appellate courts.

The June 2009 ruling in the U.S. Court of Appeals for the D.C. Circuit is at odds with rulings in two other appeals courts -- the 2nd and 8th circuits -- that afforded absolute immunity to prosecutors working with grand juries, Zachem's lawyers at Crowell & Moring said in the petition. The D.C. Circuit stripped Zachem of absolute immunity and remanded the grand juror's case to the U.S. District Court for further proceedings on whether the prosecutor is entitled to qualified immunity.

"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," Crowell partner Michael Martinez said in court papers. The Justice Department is paying Zachem's legal bills.

The plaintiff, Peter Atherton of Northwest Washington, was a grand juror in D.C. Superior Court in April 2001 when he was abruptly removed from the panel. Fellow grand jurors complained to Zachem that Atherton was impeding the deliberative process -- that he was unable or unwilling to follow the rules, according to Zachem. The grand jury was re-voting on charges that the panel had already heard, court records show, based on Atherton's demands for more information.

Zachem reported the grand jurors' observations to a Superior Court official, Suzanne Bailey-Jones, who dismissed Atherton as a juror. Superior Court rules say the chief judge, or another designated judge, has the authority to dismiss a grand juror. Then-Chief Judge Rufus King III was not contacted before Atherton's dismissal, court records show.

Atherton sued in 2004 in the U.S. District Court for the District of Columbia. Acting pro se, he won an early victory in the D.C. Circuit. And then last year, with his case back before the appeals court, he won a second partial victory.

The D.C. Circuit ruled that Zachem is not entitled to absolute immunity because his actions in reporting on a grand juror were not "intimately associated" with the criminal process. Zachem was not presenting evidence to the grand jury. He was not preparing for trial. The U.S. Attorney's Office has no authority to dismiss a grand juror.

Martinez of Crowell said the D.C. Circuit ruling "erodes vital protections that have long been afforded to prosecutors engaged in conduct that is intimately associated with the judicial phase of the criminal process." He said the circuit's decision "will likely influence the conduct of every prosecutor in the United States with involvement before grand juries."

This article first appeared on The BLT: The Blog of Legal Times.