The Beat (the Rap) Goes On, and Innocence Be Damned

From BNA

Absolute Immunity Shields Prosecutors' Delay
In Revealing Results of Post-Trial DNA Testing

A criminal defendant who was wrongfully convicted of murder cannot sue prosecutors for their delay in disclosing the exculpatory results of post-conviction DNA test results, the U.S. Court of Appeals for the Second Circuit held Nov. 13 (Warney v. Monroe County, 2d Cir., No. 08-0947, 11/13/09).

The court decided that the prosecutors were acting in furtherance of their role as advocates for the state when they made their decision regarding the timing of their disclosure, thus entitling them to absolute immunity from civil liability for their conduct.

According to the court, Plaintiff Douglas Warney has an IQ that places him in the mentally retarded range. He was convicted of murder largely on the strength of multiple confessions elicited from him by police. He subsequently pursued federal habeas corpus relief and a state court order compelling the DNA testing of biological evidence collected in the case.

While state prosecutors were formally contesting Warney's efforts to obtain post-conviction relief, they secretly submitted the evidence for DNA testing. In February 2006, they received a written report revealing that—contrary to their theory at trial—all the blood at the scene (other than the victim's) belonged to one person and that one person was not Warney.

A couple of weeks later, the prosecutors learned that the DNA in this blood matched that of an area man who was already doing time for another murder. In March, the prosecutors learned further that this man's fingerprints matched a previously unidentified print lifted from the scene of the murder that had been pinned on Warney. The prosecutors did not, however, disclose this information until May, 72 days after they had received the initial report.

The other man confessed, and Warney was released. He subsequently filed a federal civil rights lawsuit claiming that prosecutors' foot-dragging prolonged his incarceration in violation of his right to due process.

A prosecutor is entitled to absolute immunity from liability in civil rights actions only for conduct that is “intimately associated with the judicial phase of the criminal process,” Imbler v. Pachtman, 424 U.S. 409 (1976), and that “occur[s] in the course of his role as an advocate for the State,” Buckley v. Fitzsimmons, 509 U.S. 259 (1993). This standard is to be applied to specific instances of conduct by using a “functional approach” that focuses on whether the prosecutor was functioning as an advocate, rather than as an investigator or administrator, when he engaged in the conduct at issue.

The Second Circuit observed that distinguishing between advocacy and administration is especially difficult with respect to prosecutors' conduct in collateral proceedings because “the ‘judicial phase’ is technically finished.” This difficulty is reflected in the varied approaches that the other circuits have taken to the question.

Addressing the issue for the first time, the Second Circuit held that “absolute immunity shields work performed during a post-conviction collateral attack, at least insofar as the challenged actions are part of the prosecutor's role as an advocate for the state.”