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A prosecutor who conspires to fabricate evidence can be held liable for violating a defendant’s constitutional rights, the 2nd U.S. Circuit Court of Appeals has ruled. Drawing a distinction between prosecutors’ roles as advocates and investigators, the court held that prosecutors can be sued for fabricating evidence in the course of investigation, even though they are completely immune from civil rights suits for their acts as advocates. However, the ruling by the three-judge panel leaves a great deal unsettled, since the court did not decide whether the prosecutor was acting as advocate or investigator in the case at issue. The decision in Zahrey v. Coffey, 99-9119, revived a civil rights suit against Assistant U.S. Attorney Martin E. Coffey that had been dismissed last September by Judge Loretta A. Preska of the U.S. District Court for the Southern District of New York. The plaintiff, police officer Zaher Zahrey, was arrested in October 1996 on charges that he had conspired to rob drug dealers. He was acquitted at trial, but only after spending eight months in jail. Zahrey then brought a civil rights suit against other police officers, local prosecutors and Coffey, in which one of the allegations was that Coffey conspired to manufacture evidence against him, depriving him of liberty without due process of law. Zahrey accused the authorities of convincing witnesses to testify falsely by offering them incentives including, in one case, $1,300 in rent money. Coffey moved to dismiss before trial, arguing that, as a prosecutor, he was entitled to immunity from civil rights suits. His position was that he had absolute immunity for acts done as an advocate and qualified immunity for acts done as an investigator. The lower court agreed that Coffey had qualified immunity for his actions while investigating the case and then dismissed the suit against him, ruling that case law as of 1996 did not clearly establish that fabricating evidence could constitute a violation of constitutional rights. “FALSE EVIDENCE” But the Second Circuit went the opposite way, ruling that the prosecutor was on notice that using false evidence might subject him to liability. “It has … long been established that a prosecutor who knowingly uses false evidence at trial to obtain a conviction acts unconstitutionally,” wrote Judge Jon O. Newman for the court. “Any prosecutor aware of [the case law] would understand that fabricating evidence in his investigative role violates the standards of due process and that a resulting loss of liberty is a denial of a constitutional right.” The Second Circuit remanded the case for trial, noting that Coffey could still be immune from suit if he had acted in his role as an advocate. Newman was joined in his decision by Judges Amalya L. Kearse and Jose Cabranes. Zahrey was represented by Joel B. Rudin of New York. Assistant U.S. Attorneys Martin J. Siegel and Jeffrey Oestericher argued for the defense. Joshua L. Dratel and Marshall A. Mintz, both of New York, submitted an amicus brief for the National Association of Criminal Defense Lawyers and The New York State Association of Criminal Defense Lawyers.

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