From the ABA Journal comes a report (Appeals Court: Ex-Prosecutor Can’t Be Sued Over His Work on Terror Case – News – ABA Journal) about a ruling from the Sixth Circuit Court of Appeals affirming in part (the dismissal) and reversing in part (the denial of a dismissal) rulings by the lower court in a civil action brought by a previously charged criminal defendant against a former prosecutor for allegedly failing to disclose exculpatory (Brady) information.
This decision (provided in full by the court) is a fascinating and informative analysis of the law of immunity for federal prosecutors from such actions (a Bivens-type claim). While the full facts and findings of the court are too long to report here, I commend to your reading the full decision of the court.
Here are some of the essential allegations of the civil complaint:
On August 30, 2007, Koubriti filed the present action. In his complaint–which named Convertino, Thomas, and Ray Smith8 as co-defendants–Koubriti seeks relief pursuant to the Fifth Amendment and Bivens v. Six Unknown Named Agents of theFederal Bureau of Narcotics, 403 U.S. 388 (1971). Koubriti requested $9,000,000 in compensatory damages plus punitive damages arguing that: Defendants violated his Fifth Amendment Rights by maliciously and intentionally withholding exculpatory evidence and fabricating evidence contrary to Brady v. Maryland, 373 U.S. 83, 87 (1963), prior to and during his prosecution for the offense of conspiracy to provide materials for or resources to terrorists contrary to 18 U.S.C. §§ 371 and 2339(e). The complaint then sets out the following claims with respect to Convertino’s liability:
Defendant Convertino while acting in an investigative type role withheld exculpatory evidence or fabricated evidence in the Plaintiff’s criminal case by:
- Failing to turn over photographs of the Queen Alia Hospital or ordering that they not be turned over to the Defendant or presented to the Grand Jury;
- Failing to disclose that none of the Defendants could establish which site or sites the sketches established (if either) after their respective trips to Jordan;
- Ordering or directing Defendant Thomas not to memorialize any of the ten to twenty interviews of Yousif Hnimssa [sic] prior to the Second Superseding Indictment being issued;
- Failing to disclose the Opinion of Air Force OSISA Goodnight to the Grand Jury or Plaintiff concerning the alleged Incirlik Air Base sketches.
While the details can be a bit confusing without reading the entire opinion, suffice it to say (for the sake of brevity), this civil action was brought to seek redress for the prosecutor’s actions, which led to his government employment termination, criminal charges against him ( he was acquitted) and a bar investigation (which did not lead to any licensing charges).
If you are considering bringing (either as a plaintiff or an attorney) such a lawsuit for non-disclosure of Brady materials, you would be well advised to read this decision and the cases cited in it – first.