Our Lady Of the Lake: February 2007

Wednesday, February 21, 2007

There is a misconception among some levels of the judicial process has convinced us that it is usually highly counterproductive.

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Trial Ad Notes

Tuesday's Lunchtime Choices

Tomorrow has a couple of trial-practice-related programs during the lunch hour:

* Michael Shadow, a well-respected consultant on effective speaking, is presenting a workshop -- courtesy of Career Services and WSTLA.
* Federal Public Defender Tom Hillier is speaking about his experience representing Ahmed Ressam ("the Millennium Bomber") (Forum on Law and Policy).

I wouldn't want to discourage anyone from attending the library's regular Tuesday Library Lifesavers (this week: selecting a database on Westlaw and starting points for foreign and international legal research) -- but these sound very interesting too.
Big Attorney Fees in Katrina Case

Mississippi had worked out a settlement with State Farm over hundreds of lawsuits and thousands of disputed claims following the insurance company's refusal to pay for damage caused by Hurricane Katrina's storm surge. The lead lawyer representing the state was Richard "Dickie" Scruggs, who received a lot of publicity for his work in the tobacco litigation -- and criticism for the size of his fee award. Katrina Suit May Net Lawyers Up to $46 Million, AP (Law.com), Jan. 26, 2007.
Mistrial Declared After Lawyer Failed to Finish Closing Argument

Mistrial Declared After Lawyer Failed to Finish Closing Argument reports the AP (on law.com), Jan. 29, 2007.

The defense lawyer in an attempted murder case in Farmville, VA, returned to the courtroom after a recess and said that he couldn't continue his closing argument because he had lost his train of thought. The defendant offered to finish the argument himself. The presiding judge declared a mistrial and recommended that the lawyer, a 74-year-old former judge, seek medical treatment.
Milberg Weiss Plaintiff Took Kickbacks

A former ophthalmologist has admitted to taking payments for serving as lead plaintiff in class actions filed by plaintiffs' firm Milberg Weiss. Former Lead Plaintiff's Guilty Plea May Spell Trouble for Lawyer Lerach, The Recorder (law.com), Feb. 1, 2007. See Wikipedia for a summary of the firm's troubles.
How to Deal With the Many Types of Anti-Corporate Jurors

Two litigation consultants (Ken Broda-Bahm and Kevin Boully) offer advice on How to Deal With the Many Types of Anti-Corporate Jurors, Nat'l L.J., Feb. 2, 2007.

People who dislike or distrust corporations fall into different categories:

Anti-corporate individualists, who distrust a corporation's level of power and control, will not share the same views as anti-corporate environmentalists, who disparage the side effects of some forms of corporate behavior. Anti-corporate moralists, who focus on corporate dishonesty above all, will not always agree with anti-corporate populists, who value the common person and draw sharp distinctions between themselves and elite executives. Anti-corporate egalitarians, who inherently mistrust profit itself and resulting concentrations of wealth, differ from anti-corporate nationalists, who fear the transnational influence of corporations on so many facets of life.

There even exist anti-corporate capitalists, who are critical of modern corporations precisely because of the high standards they impose for the responsibility of corporations in a self-policing economic system. Bearing in mind these distinctions and many others, it pays to know why a potential juror may dislike a big company, in order to know whether that juror should serve and, if the juror serves, how he or she might be persuaded.

(emphasis added) It all makes sense, but who knew?

The authors offer different voir dire and trial strategies to address each type.
Stimson Quits Over Boycott Remarks

Remember Charles "Cully" Stimson, the Defense Department official who suggested that corporate clients should take their business away from law firms that represent Guantanamo detainees? (See earlier post.) Well, he has resigned. He said the controversy was getting in the way of his effectiveness. Defense Official Quits in Wake of Remarks About Guantanamo Prisoners' Lawyers, law.com (AP), Feb. 5, 2007.
Courts' Use of Wikipedia

The New York Times had an article this week about courts citing Wikipedia -- which they've done over a hundred times since 2004. Courts Turn to Wikipedia, but Selectively, New York Times, Jan. 29, 2007.

Meanwhile, the Washington Supreme Court cited Wikipedia last week. State v. O'Neal, 2007 Wash. LEXIS 60, (Jan. 25, 2007), Washington courts link, involved the issue whether defendants were "armed" for the purpose of a firearms enhancement for a drug offense when they had guns in their home but were not in holding them at the time of their arrest. When Justice Chambers was relating the facts, he stated that a "loaded AR-15 (a civilian version of the military M16) was found in one bedroom" -- and supported the parenthetical with a footnote citing Wikipedia. This seems typical of the sort of uses mentioned by the New York Times: a side point that might add interest or context to the opinion but is not at all central to the resolution of the case. (Justice Sanders, in dissent, did not cite Wikipedia.)

Justice Chambers cited Wikipedia again on Thursday, this time to support a literary allusion: "As Sherlock Holmes might have said to Dr. Watson, 'It is elementary, my dear fellow,' . . ." PUD No. 2 v. North American Foreign Trade Zone Industries, LLC, 2007 Wash. LEXIS 125 (Feb. 1, 2007)(Chambers, J., dissenting), Wash. courts link.

Thanks: Kris Henderson
Advice from Abe

In honor of Lincoln's birthday, David Giacalone at Shlep: the Self-Help Law Express has a nice post with Lincoln’s message to lawyers and litigators, Feb. 12, 2007.
First SCOTUS Argument

The Oregonian gives a play-by-play account of a Portland lawyer's rookie appearance before the Supreme Court. Can attorney keep his cool before 'hot bench'?, Oregonian, Feb. 12, 2007.

Thanks: Kim Ositis.

Graphic: mw.
9th Cir.'s En Banc Cases: "a noteworthy flurry"

The National Law Journal reports 9th Circuit Steps Up En Banc Reviews, Nat'l L.J., Feb. 6, 2007. It has granted 25 requests for the full circuit to rehear cases decided by three-judge panels between between Dec. 21 and Jan. 23. (In that little more than a month there were three federal holidays, and you might think business would slow down.) Professor Arthur D. Hellman (U. Pittsburgh) says "This is a noteworthy flurry of activity."

Commentators in the article suggest that the Ninth Circuit might be trying to clear up conflicts within the circuit before cases can go to the Supreme Court.

Prof. Hellman is not a casual observer of the Ninth Circuit. He is the editor of Restructuring Justice: The Innovations of the Ninth Circuit and the Future of the Federal Courts (KF8700 .R47 1990 at Classified Stacks). He is the author of a casebook on federal courts and a couple of dozen law review articles on related issues. He has also testified about court organization.

* The View from the Trenches: A Report on the Breakout Sessions at the 2005 National Conference on Appellate Justice, J. App. Prac. & Process 141 (2006).
* Assessing Judgeship Needs in the Federal Courts of Appeals: Policy Choices and Process Concerns, J. App. Prac. & Process 239 (2003).
* Statement of
Arthur D. Hellman, House Committee on the Judiciary, Subcommittee on Courts, the Internet, and Intellectual Property, Hearing on H.R. 2723, “The Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003”
October 21, 2003.

Citing Unpub "Opinions" in 9th Cir.

A colleague asked me what the latest was on citing unpublished opinions, so I looked at the Jan. 2007 version of the Federal Rules of Appellate Procedure with 9th Circuit Local Rules here.

Here's the deal:

* Nationally, all the federal courts have to allow citation of unpublished "opinions, order,s judgments, or other written dispositions" -- BUT ONLY those issued after Jan. 1, 2007. Fed. R. App. P. 32.1.
* In the Ninth Circuit, you can cite unpublished dispositions from BEFORE Jan. 1, 2007, when they're relevant under the law of the case, claim preclusion, etc., OR for factual purposes (e.g., to show double jeopardy or the existence of a related case) OR in a request to publish them or a motion for rehearing.
* The Ninth Circuit says that, even though you can cite them now, unpublished dispositions still "are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion." 9th Cir. R. 36-3(a).
* When the Ninth Circuit wants a written disposition to be published, it calls it an opinion. There are seven criteria, including that the case establishes, alters, modifies, or clarifies a rule of law, or calls attention to a rule of law which appears to have been generally overlooked. 9th Cir. R. 36-2.
* A "written, reasoned disposition of a case or a motion which is not intended for publication" is an memorandum. Memoranda are never "published." 9th Cir. R. 36-1.
* Any other disposition is an order. An order may be published by order of the court. 9th Cir. R. 36-1.
* Only opinions may indicate the judge who wrote them or be labeled "per curiam."

As a practical matter, many of us will continue to refer to "unpublished opinions" when, under the Ninth Circuit's definitions, they're "memoranda" or "orders." The thing to remember is that you can the new ones, but they still have no precedential value.
Questions About McKay's Dismissal

The Seattle Times reports today that U.S. Attorney John McKay got good review 7 months before ouster (Feb. 8). Not only was a Justice Department review positive, but McKay has also received high praise from Chief Judge Robert Lasnick (W.D. Wash.) and King County Prosecutor Norm Maleng. And "the U.S. Navy last month gave McKay its Distinguished Public Service Award, its highest civilian honor, for creating a computer network that enhances the ability of local, state and federal law enforcement to share information."

Another story: Former U.S. attorney McKay says he was ordered to resign, Seattle Times, Feb. 7, 2007. Thanks: Stephanie Knightlinger. And another: I was fired, says ex-U.S. attorney, News Tribune, Feb. 8, 2007. This one quotes Tom Hillier (Federal Public Defender and Trial Ad instructor): "If this was done for political reasons, it shows a fundamental disrespect for the independence of the U.S. attorneys."
DSHS Sued by Foster Kids

Three former and current foster children are suing the Department of Social and Health Services, alleging that their former foster father, who abused them, should not have been licensed or retained his license. DSHS hit with foster care claims, Olympian, Feb. 1, 2007. The foster father, Enrique Fabregas, had a criminal record when he became licensed. During the time he had foster children in his home, there were nearly 30 complaints against him. Many were never investigated.

He currently faces criminal charges (rape, possession of child pornography, sexual exploitation of a minor) and is being held in King County Jail in lieu of $1 million bail.

The plaintiffs' lawyer is David P. Moody, who has successfully sued the state in several high-profile (and big-dollar) cases on behalf of institutionalized plaintiffs. Moody has been a Trial Ad instructor.

See also State facing lawsuit in sexual-abuse case, Seattle Times, Feb. 1, 2007; Previous complaints against foster father ignored, Seattle Times, July 26, 2006.

Robin Arnold-Williams, the Secretary of DSHS, says that the state needs unified background-check process (instead of the 14 statutes that currently govern background checks). DSHS chief: Unify background checks, Olympian, Feb. 8, 2007.
Watada Mistrial

Yesterday the presiding judge declared Lt. Ehren Watada's court-martial a mistrial because of an agreement he signed before the trial. He could be retried. Watada case mistrial declared, Seattle Times, Feb. 8, 2007.
Wanna Be a Prosecutor?

Interested in becoming a prosecutor? See Julie Reynolds, How to Become a Prosecutor, Washington Lawyer (DC Bar), Jan. 2007.
Federal Prosecutors Asking for Privilege Waiver

An attorney writes an opinion piece critical of the Department of Justice's position on asking corporate defendants to waive privilege. N. Richard Janis, Taking the Stand: The McNulty Memorandum: Much Ado About Nothing, Washington Lawyer (DC Bar), Feb. 2007.

DOJ operated for several years under the "Principles of Federal Prosecution of Business Organizations" (Jan. 20, 2003), known as the "Thompson memorandum" after its author. Under the policy, federal prosecutors would encourage corporations and individual corporate defendants to waive their attorney-client privilege and work-product protection in order to be seen as cooperating with the investigation. Now there's a new memorandum in place, the McNulty Memorandum. Mr. Janis, who serves on the ABA's Presidential Task Force on the Attorney Client Privilege, thinks the new memorandum is about as bad as the last. (The views expressed are his and not the Task Force's.)
Alternatives to Detention

Studies show that juvenile detention often does more harm than good -- especially during the period between when being cited and appearing before a judge. The California Bar Journal has an article describing a program in Santa Cruz that has the teens in supervised evening activities plus a weekend day of community service instead of locking them up. It seems to work for the kids -- AND it save the state a lot of money too. An Alternative to Juvenile Detention, Cal. B.J., Feb. 2007.

The program in Santa Cruz is supported by the Annie E. Casey Foundation, whose Juvenile Detention Alternatives Initiative is working on similar programs around the country. At at the JDAI website, you can find studies showing the results of test programs. There are now about 75 sites in 19 states and DC. Looking at a recent newsletter (Casey Connects, winter 2006), I happened to see that a program in Tacoma (Pierce County) has enabled the county to close a 50-unit wing of the detention center; the county reallocated $800,000 per year to detention alternative programs. Pierce County's diversion program is described here.
Quality of Life at Big Firms - for Women and Men

The cover story in this month's California Lawyer is Malaika Costello-Dougherty, We're Outta Here: Why Women Are Leaving Big Firms, Feb. 2007.

Robert Ambrogi picked up an interesting fact:

Women are leaving large law firms faster than men. But men, it would appear, are jumping ship in greater numbers than ever before. That suggests that Howell's statement about the need for radical change at large firms applies across the board. Men, too, are choosing balance over billables.

Women Lawyers See Generation Gap, Legal Blog Watch, Feb. 6, 2007.

Thanks: Andy Benjamin.
More on the US Attorney Shake-up

The Washington Post has more on "the growing political storm over the recent U.S. attorney firings." Yesterday Deputy AG Paul J. McNulty acknowledged that a U.S. attorney in Arkansas was asked to resign so that the administration could appoint a former aide to Karl Rove, but said that the administration asked six other U.S. attorneys to step down because of "performance-related" issues. Deputy Attorney General Defends Prosecutor Firings, Wash. Post, Feb. 7, 2007.

This is the first article about the flap that names our local U.S. attorney, John McKay, as one of the ones who was asked to resign. Until now, I'd been agnostic, thinking it was possible he did indeed decide that it was time to leave government service to return to practice or teaching. (When he announced his resignation, he said private practice; later he said he'd teach at Seattle U.) People do decide to leave jobs -- and I imagine the U.S. attorney job is pretty demanding and could leave one craving a break after five years.

Earlier posts: Jan. 28, Jan. 27 , Dec. 15.

For what it's worth, Mr. McKay was one of my favorite law school commencement speakers here. I was sorry to miss his talk at the law school last October.

Thanks: Stephanie Knightlinger.
UW Law Alumnae; Therapeutic Jurisprudence

Last night I went to the UW Law Women's Caucus Second-Annual Alumnae Recognition Reception. Professor Emerita Marjorie Dick Rombauer ('60), an expert in commercial law and legal writing and research, was given the Distinguished Alumna Award. And Justice Bobbe Bridge ('76) received the Outstanding Contribution to Women in the Law Award and delivered the keynote address.

Both Professor Rombauer and Justice Bridge talked about the dramatic difference in the makeup of the law school since they were students. When Prof. Rombauer was a 1L, there were only three upperclass women: one 3L and two 2Ls. When Justice Bridge was a student, there were more women, but still a small minority. Both honorees were firsts: Prof. Rombauer was the first female tenured faculty member other than the librarian, Marian Gould Gallagher, and the first female dean (she was acting dean for a year). Justice Bridge was the first female partner at her law firm (Garvey Schubert Barer). Now (and for the last several years) women are a majority of the entering class.

In her remarks, Justice Bridge related that some people see "the feminization of the legal profession" as a harm, but she spoke of the great benefits. While there will always be a role for adversarial lawyering, she applauded the move toward collaborative lawyering. She talked about the rise of "therapeutic jurisprudence" -- courts that try to solve problems instead of just meting out punishment or addressing one incident only to leave the fertile ground for the next and the next. These include community courts, drug courts, mental health courts, and (although she didn't mention them) youth courts.

For an introduction to therapeutic jurisprudence, see these materials from tne National Center for State Courts:

* William Schma, Therapeutic Jurisprudence (2000)
* Specialized Courts: Problem Solving Courts: Resource Guide (last modified June 26, 2006)
* David B. Wexler, Future Trends in State Courts 2004: Therapeutic Jurisprudence: It's Not Just for Problem-Solving Courts and Calendars Anymore

For more, see NCSC's Problem-Solving Courts Resource Center, which has information about specific types of these courts, help for courts, best practices checklists, and so on. The Problem-Solving Reporter is a newsletter with short pieces about developments around the country.

Problem solving courts (programs using therapeutic justice) in Washington:

* Washington State Center for Court Research (Admin. Ofc. of the Courts), An Evaluation of Unified Family Court Pilot Sites in Washington State (2004) (314 page report)
* King County Drug Diversion Court Program's website
* Municipal Court of Seattle Mental Health Court
* Reclaiming Futures project (youthful offenders with drug abuse and/or mental health problems in King County) post
* Mental health court (post about judge in Thurston County)
* Proposal for homeless veterans' court (post)
* Youth courts (post)
* Chief Judge Theresa Pouley (Lummi Nation), Remembering Indigenous Justice: The Healing to Wellness Programs of Lummi Tribal Justice System, Equal Justice, Aug. 2002, at 3.

(This isn't an exhaustive list -- it's just to give you a sense of the range of projects that are going on.)
9th Cir. OKs Wal-Mart Class Action

Today the Ninth Circuit upheld the district court's certification of a class action in a sex discrimination case against Wal-Mart. Dukes v. Wal-Mart, Inc., No. 04-16688 (9th Cir. Feb. 6, 2007), court website.

The class is estimated to include more than 1.5 million women -- any woman who has worked for any Wal-Mart store in the United States in a range of positions ("from part-time, entry-level, hourly employees to salaried managers") from Dec. 26, 1998, to present. Plaintiffs seek class-wide injunctive and declaratory relief, as well as lost pay and punitive damages.

Judge Pregerson wrote the majority opinion; Judge Kleinfeld dissented.

The plaintiffs' website for the class is here. The homepage suggests that readers might be interested in a similar case against Costco, which has its own website. The litigation teams are very similar for the two cases (there are 7 firms working on the Wal-Mart case and 5 for the Costco case).
How Washington Picks Judges

From the Seattle Times editorial page editor, an overview of the issues around judicial campaigning: James Vesely, Handpick your judge, or get one picked for you, Seattle Times, Feb. 4, 2007.
Jurisdiction Under Class Action Law

The Class Action Fairness Act allows defendants to remove class actions to federal court under certain circumstances. See Third Circuit Weighs In On Burden Of Proof Under CAFA, Consumer Law & Policy Blog, Dec. 18, 2006, for a discussion of a case holding that the defendant has the burden of proof to show that the jurisdictional requirements are met.

Speaking of CAFA, the Loyola of Los Angeles Law Review has a symposium on it. For link and list of articles, see Just What You're Hankerin' For: A Bevy of Articles About CAFA, Consumer Law & Policy Blog, Dec. 14, 2006.
When Will Schierman's Trial Begin?

The prosecution is seeking a delay of 5 months in Conner Schierman's trial, which is now scheduled to begin March 26. Senior Deputy Prosecutor Scott O'Toole is requesting the delay so forensic experts can have more time to analyze evidence from the crime scene. James Conroy, Schierman's attorney, opposes the delay. Judge Greg Canova ordered the prosecution to return in two weeks with declarations showing the reason for the delay. Prosecutor in murder trial seeks delay of 5 months, Seattle Times, Feb. 2, 2007.
Appellate Attorney Sanctioned for Dissing Court

The Utah Supreme Court has declined review of a case and ordered the unsuccessful appellant's attorney to pay attorney fees because the briefs had "a substantial amount of materail that is offensive, inappropriate and disrespectful" of the Court of Appeals. Among other things, the lawyer had said that the Court of Appeals fabricated evidence and was destroying "the moral premise of the legal system." Sanctioned for 'Disrespect', ABA Journal eReport, Jan. 26, 2007.

The sanctioned attorney is Boyd Kimball Dyer, who admitted, "I was wrong, and I deserve the sanctions." In his day job, Dyer is a law professor at the University of Utah.

The case is Peters v. Pine Meadow Ranch Home Ass'n, 2007 UT 2 (Jan. 12, 2007). The court offers a lesson in civility:

¶21 There is a misconception among some lawyers and clients that advocacy can be enhanced by personal attacks, overly aggressive conduct, or confrontational tactics. Although it is true that this type of advocacy may occasionally lead to some short-term tactical advantages, our collective experience as a court at various levels of the judicial process has convinced us that it is usually highly counterproductive. It distracts the decision-maker from the merits of the case and erodes the credibility of the advocate. Credibility is often directly tied to civility and professionalism. Judges, jurors, and other lawyers are more likely to believe a lawyer who is courteous and treats others with dignity and respect. Counsel in the case at bar would have been far more effective had he focused exclusively on the facts and the law without making his additional commentary disparaging and insulting the judiciary.

¶22 We have sought to encourage the bar to aspire to professionalism and civility in the practice of law through our adoption of the Standards of Professionalism and Civility. While these standards are not binding, we encourage members of the bar to study and follow them. Had counsel in the cases at bar observed these standards, he and his clients would not have incurred the severe sanctions we impose today.

Tuesday, February 20, 2007

I Love You Love...... she's under my thumb"

Under my thumb
The girl who once had me down
Under my thumb
The girl who once pushed me around

Its down to me
The difference in the clothes she wears
Down to me, the change has come,
Shes under my thumb

Aint it the truth babe?

Under my thumb
The squirmin dog whos just had her day
Under my thumb
A girl who has just changed her ways

Its down to me, yes it is
The way she does just what shes told
Down to me, the change has come
Shes under my thumb
Ah, ah, say its alright

Under my thumb
A siamese cat of a girl
Under my thumb
Shes the sweetest, hmmm, pet in the world

Its down to me
The way she talks when shes spoken to
Down to me, the change has come,
Shes under my thumb
Ah, take it easy babe
Yeah

Its down to me, oh yeah
The way she talks when shes spoken to
Down to me, the change has come,
Shes under my thumb
Yeah, it feels alright

Under my thumb
Her eyes are just kept to herself
Under my thumb, well i
I can still look at someone else

Its down to me, oh thats what I said
The way she talks when shes spoken to
Down to me, the change has come,
Shes under my thumb
Say, its alright.

Say its all...
Say its all...

Take it easy babe
Take it easy babe
Feels alright
Take it, take it easy babe~~

Yeah Babe you Mick Are 1 sick puppy!
Scorned equals a thorn!
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Paul McCartney and Wings

you'd think that people would have had enough of silly love songs.
But I look around me and I see it isn't so.
Some people wanna fill the world with silly love songs.
And whats wrong with that?
Id like to know, cause here I go again
I love you, I love you,
I love you, I love you,
I cant explain the feelings plain to me, say cant you see?
Ah, she gave me more, she gave it all to me
Now cant you see,
Whats wrong with that
I need to know, cause here I go again
I love you, I love you

Love doesn't come in a minute,
Sometimes it doesn't come at all
I only know that when I'm in it
It isn't silly, no, it isn't silly, love isn't silly at all.

How can I tell you about my loved one?
How can I tell you about my loved one?

How can I tell you about my loved one?
(I love you)
How can I tell you about my loved one?
(I love you)
[repeat and fade]

* Paul McCartney lyrics band on The Run
* Here Today
* Hope of Deliverance
* Maybe I�m Amazed
* My Love
* Say Say Say
* Your Loving Flame

* related lyrics Eric B. & Hakim
+ Keep �em Eager to Listen
* Darius
+ Colorblind
* Rod Stewart
+ Forever Young
+ Have I Told You Lately
* Reba Mcentire
+ Mary, Did You Know?
* Tim McGraw
+ Down on The Farm
* Sarah McLachlan
+ Building a Mystery
* Big L
+ Deadly Combination (feat. 2Pac)

I Love You Love...... she's under my thumb"

Sounds like the Bright Harper Voweley PTA, concealing and distorting exculpatory evidence to create misleading or incomplete knew about the alleged..

after being acquitted in 1986 the loser,James Reginald Plaisted, Former CCISD Psychologist moved to massachussetts.

WHO paid for convicted Nueces county CHIld Mole lester to go to LAW SCHOOL? transplanted to, THE Cardinal Law in BOSTON?Some how Graduated before he was intercepted by an fbi Angel?

John M. Kearney stated: "i didn't spend these past 6(six)" or "(7) seven years in the prosecutor's office for nothing"

concealing and distorting exculpatory evidence to create misleading or incomplete witness accounts of what Moore knew about the alleged fraud; 4 withholding material exculpatory information from Moore after indictment; and disclosing grand jury testimony to unauthorized third parties.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 18, 1995 Decided September 22, 1995

Nos. 93-5341 and 93-5343

WILLIAM G. MOORE, JR.,

APPELLANT

v.

JOSEPH B. VALDER, ET AL.,

APPELLEES

On Appeal from the United States District Court

for the District of Columbia

(92cv02288 and 93cv00324)

Paul M. Pohl argued the cause for the appellant. On brief was James E. Anklam.

Robert V. Zener argued the cause for appellees Valder, et al.

Jonathan R. Siegel, Attorney, Department of Justice, argued the cause for appellee United States of America. On brief were Frank W. Hunger, Assistant Attorney General, Eric H. Holder, Jr., United States Attorney, and Barbara L. Herwig, Attorney, Department of Justice. Gordon W. Daiger and Robert M. Loeb entered appearances.

Before: EDWARDS, Chief Judge; WALD and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Appellant William G. Moore, Jr. (Moore) appeals the dismissal of his Bivens and Federal Tort Claims Act claims against Assistant United States Attorney Joseph B. Valder (Valder), six United States Postal Service Inspectors (postal inspectors) 1 and the United States. Moore sued for injuries allegedly caused by Valder's and the postal inspectors' malicious and retaliatory prosecution of him. We affirm in part and reverse in part.

I.

Moore was indicted in October 1988 on various counts of theft and fraud. Moore was chairman, president and chief executive officer of Recognition Equipment Incorporated (REI), a company interested in supplying the U.S. Postal Service (USPS) with address-scanning equipment. The indictment charged that Moore and Robert Reedy, another REI employee, engaged in a scheme to defraud the federal government by persuading William Spartin to recommend for the position of United States Postmaster General a candidate who favored using REI's address-scanning equipment. Spartin was both president of Gnau & Associates, Inc. (GAI), a consulting firm hired by REI, and president of a subsidiary of an executive search firm hired by the USPS to identify a qualified candidate to serve as Postmaster General. The indictment also accused Moore and Reedy of participating in a scheme by which GAI employees paid money to Peter E. Voss, a member of the USPS Board of Governors, in return for Voss's steering business to GAI and its clients. REI had hired GAI at the suggestion of Voss. Five co-conspirators, including Voss and John R. Gnau, Jr., the principal of GAI, either pleaded guilty or testified about the fraud pursuant to a grant of immunity.

In November 1991, at the close of the government's case in Moore's criminal non-jury trial, the district court granted Moore's motion for a judgment of acquittal. United States v. Recognition Equip. Inc., 725 F. Supp. 587 (D.D.C. 1989). The district court found insufficient evidence to support a reasonable inference that Moore and Reedy knew of either scheme. Id. Moore then filed a complaint in the U.S. District Court for the Northern District of Texas against Valder and the postal inspectors, asserting a Bivens 2 cause of action for malicious prosecution (malicious prosecution claim) and a Bivens claim for prosecution in retaliation for the exercise of his first amendment right (retaliatory prosecution claim). 3 Moore later filed a second complaint in the Northern District of Texas seeking recovery from the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671 et seq., for the same alleged injuries.

In the two complaints Moore alleged that Valder and the postal inspectors maliciously prosecuted him, even though they knew that he was unaware of the fraud, based on his and REI's criticism of USPS procurement policies and on his recommendations to the President of qualified candidates for Postmaster General. In addition, Moore alleged other misconduct, including claims that Valder told several postal inspectors in the presence of a grand jury witness that he did not care whether Moore was in fact guilty because he wanted to secure a "high-profile" indictment to further his career; that Valder and the postal inspectors intimidated and coerced witnesses into changing their testimony to incriminate Moore; that they concealed evidence of Moore's innocence; that they manipulated witness testimony and presented to the grand jury false, incomplete and misleading written witness statements; that they lost, destroyed or concealed from the grand jury exculpatory information; that they disclosed grand jury testimony to third parties; and that Valder withheld material exculpatory information from Moore after indictment.

The district court dismissed the Bivens claims against Valder, holding that he was protected by absolute immunity. The court denied the postal inspectors' motion to dismiss the Bivens claims against them on the ground of qualified immunity and then transferred the remaining claims to the U.S. District Court for the District of Columbia, concluding that it lacked in personam jurisdiction. The FTCA complaint was also transferred and the parties stipulated to the consolidation of the two cases by the district court here.

The district court first denied Moore's motion to return the complaints to the Northern District of Texas. The court then dismissed the Bivens claims against the postal inspectors because Moore's complaint did not recite direct evidence of their alleged unconstitutional motive and therefore did not satisfy a heightened pleading standard. The court also dismissed the FTCA claims for lack of subject matter jurisdiction, holding that the alleged misconduct fell within the FTCA's discretionary function exception.

II.

On appeal Moore contends that Valder is not entitled to absolute immunity; that the court erred in applying a heightened pleading standard to his Bivens complaint; and that the FTCA's discretionary function exception does not preserve the United States's sovereign immunity from liability for the alleged misconduct. In analyzing his claims, we group the specific misconduct alleged by Moore into four categories: pressuring witnesses into incriminating Moore; concealing and distorting exculpatory evidence to create misleading or incomplete witness accounts of what Moore knew about the alleged fraud; 4 withholding material exculpatory information from Moore after indictment; and disclosing grand jury testimony to unauthorized third parties.

A. Claims Against Valder

The district court dismissed Moore's Bivens claims against Valder, holding that Valder was protected by absolute immunity. 5 We review de novo a dismissal for failure to state a claim upon which relief can be granted but accept the facts as alleged in the complaint. Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276, 1273 (D.C. Cir. 1994). We hold that absolute immunity shields Valder from liability for the decision to prosecute Moore and for some, but not all, of the other alleged instances of misconduct.

In several decisions the Supreme Court has considered whether and to what extent a state or local prosecutor qua prosecutor is immune from liability under 28 U.S.C. § 1983. As the Court has recognized, the law of immunity in a Bivens claim against a federal official mirrors that in a section 1983 claim against a state official. See, e.g., Butz v. Economou, 438 U.S. 478, 504 (1978) (deeming it "untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials"); see also Briggs v. Goodwin, 569 F.2d 10, 17-18 n.8 (D.C. Cir. 1977) ("[A]ssuming the rule of Bivens comprehends a damage action for a particular constitutional infringement by a federal officer, the federally-determined immunity applicable in such a case should be no different from the federally-determined immunity available in a § 1983 suit against a state official.") (emphasis original). Accordingly, we look to those decisions for guidance.

In Imbler v. Pachtman, 424 U.S. 409 (1976), the Supreme Court held that a prosecutor enjoys absolute immunity from section 1983 liability when he acts "as an advocate" by engaging in activities "intimately associated with the judicial phase of the criminal process." Id. at 430. As the Court in Imbler noted, the common law afforded absolute immunity to prosecutors for several reasons. Immunity encourages vigorous decisionmaking by reducing, if not eliminating, liability's inhibitory effect, id. at 424-25; it protects prosecutors against having "to answer in court each time [a defendant] charge[s] him with wrongdoing [which diverts] his energy and attention ... from the pressing duty of enforcing the criminal law," id. at 425; and it ensures that judges are not influenced "by even the subconscious knowledge that a post-trial decision in favor of the accused might result in the prosecutor's being called upon to respond in damages for his error or mistaken judgment." Id. at 427. Alternative mechanisms, such as the trial judge's remedial powers, appellate review and post-conviction collateral remedies, exist to remedy injury caused by prosecutorial misconduct. Id. In addition, there are alternative ways to deter and punish prosecutorial misconduct, such as subjecting the prosecutor to criminal prosecution or professional discipline. Id. at 429.

The Court in Imbler held that "the same considerations of public policy that underlie the common-law rule likewise countenance absolute immunity under § 1983." Id. at 424. At a minimum, advocatory conduct includes "initiating a prosecution" and "presenting the State's case." Id. at 431. 6 Recognizing that "the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom," the Court acknowledged that distinguishing between action taken as an advocate and action taken as an administrator or investigator "may present difficult questions." Id. at 431 n.33.

The line between advocatory conduct and administrative or investigative activity was refined in Burns v. Reed, 500 U.S. 478 (1991). Using a "functional approach," the Court emphasized that lower courts must look at the nature of the function performed, not the identity of the person performing it, to determine if a prosecutor is clothed with absolute immunity. The prosecutor must establish that the conduct under review was advocatory in nature. Id. at 486. The Court held that participation in a probable cause hearing ("appearing before a judge and presenting evidence in support of a motion for a search warrant") is protected by absolute immunity but giving legal advice to police officers is not. "Absolute immunity is designed to free the judicial process from the harassment and intimidation associated with litigation. That concern therefore justifies absolute prosecutorial immunity only for actions that are connected with the prosecutor's role in judicial proceedings, not for every litigation-inducing conduct." Id. at 494. The Court warned that "[a]lmost any action by a prosecutor, including his or her direct participation in purely investigative activity, could be said to be in some way related to the ultimate decision whether to prosecute, but we have never indicated that absolute immunity is that expansive." Id. at 495.

Most recently, the Court discussed the scope of absolute prosecutorial immunity in Buckley v. Fitzsimmons, 113 S. Ct. 2606 (1993). There, the Court reaffirmed that "as the function test of Imbler recognizes, the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor." Id. at 2615. Advocatory conduct protected by absolute immunity "include[s] the professional evaluation of the evidence assembled by the police and appropriate preparation for its presentation at trial or before a grand jury after a decision to seek an indictment has been made." Id. But when a prosecutor "performs the investigative functions normally performed by a detective or police officer," he is entitled only to the qualified immunity that the detective or police officer enjoys. Id. at 2616-17.

In Buckley, the petitioner alleged that the prosecutors fabricated evidence during the preliminary investigation of a crime and made false statements at a press conference announcing the indictment of the petitioner. The Court held that the prosecutors did not have absolute immunity from liability for the alleged fabrication of evidence because they did not have probable cause to arrest or to initiate judicial proceedings. Id. at 2616. "Their mission at that time was entirely investigative in character. A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested." Id. The Court emphasized that the alleged fabrication occurred before a grand jury was convened and that when the grand jury eventually was convened, "its immediate purpose was to conduct a more thorough investigation of the crime-not to return an indictment against a suspect whom there was already probable cause to arrest." Id. The Court also held that a prosecutor is not absolutely immune from liability for making allegedly false statements to the press because statements to the media "have no functional tie to the judicial process." Id. at 2618.

Applying these holdings here, we conclude that Valder's prosecutorial immunity insulates him from liability for his unquestionably advocatory decision to prosecute Moore. His prosecutorial immunity also protects Valder from liability for allegedly concealing exculpatory evidence from the grand jury and for allegedly manipulating evidence before the grand jury to create a false impression of what Moore knew about the alleged fraudulent schemes. Valder's decisions regarding what evidence to put before the grand jury, and in what manner, are advocatory because they are central to the prosecutor's task of "initiating a prosecution" and "presenting the State's case." Imbler, 424 U.S. at 431; see also Hill v. City of New York, 45 F.3d 653, 661-62 (2nd Cir. 1995) (holding absolute immunity protects prosecutor from liability for withholding exculpatory evidence from grand jury). In addition, withholding after indictment information that is subject to disclosure under Brady v. Maryland, 373 U.S. 83 (1963), is advocatory. In Imbler, the prosecutor was alleged to have knowingly used false testimony and suppressed material exculpatory evidence at trial. The Court upheld the lower courts' rulings that the prosecutor was absolutely immune from potential liability for the alleged misconduct. As other courts have recognized, it follows from Imbler that the failure, be it knowing or inadvertent, to disclose material exculpatory evidence before trial also falls within the protection afforded by absolute prosecutorial immunity. See Hill, 45 F.3d at 662 (holding failure to turn over Brady material "after prosecutorial phase" of case had begun was covered by absolute prosecutorial immunity); Carter v. Burch, 34 F.3d 257, 262 (4th Cir. 1994) (holding absolute immunity protects prosecutor from liability for failing to give defense counsel materially exculpatory evidence).

Valder, however, has not met his burden of establishing that absolute immunity protects him from potential liability for the other instances of misconduct alleged by Moore. Intimidating and coercing witnesses into changing their testimony is not advocatory. It is rather a misuse of investigative techniques legitimately directed at exploring whether witness testimony is truthful and complete and whether the government has acquired all incriminating evidence. It therefore relates to a typical police function, the collection of information to be used in a prosecution. See, e.g., Barbera v. Smith, 836 F.2d 96, 100 (2d Cir. 1987) (holding "acquiring evidence which might be used in a prosecution," in contradistinction to "organization, evaluation, and marshalling " of such evidence, is activity of "police nature" and is therefore not entitled to absolute protection) (emphasis original). "When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is "neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.' " Buckley, 113 S. Ct. at 2616 (quoting Hampton v. Chicago, 484 F.2d 602, 608 (7th Cir. 1973), cert. denied, 415 U.S. 917 (1974)). 7

Finally, disclosing grand jury testimony to unauthorized third parties is not advocatory because it has no functional tie to the judicial process-it does not contribute to the government's case before a grand or petit jury. Like making statements at a press conference, unauthorized disclosure "does not involve the initiation of a prosecution, the presentation of the state's case in court, or actions preparatory for these functions." Buckley, 113 S. Ct. at 2618. 8

B. Claims Against the Postal Inspectors

The district court dismissed Moore's claims against the postal inspectors because Moore's complaint did not allege direct evidence that they acted maliciously or in retaliation for constitutionally protected speech. Reviewing the dismissal de novo and taking the facts as alleged in Moore's complaint, Kowal, 16 F.3d at 1276, 1273, we affirm the dismissal of the malicious prosecution claim but hold that the district court erred in dismissing Moore's retaliatory prosecution claim. 9

The district court did not address whether Moore's Bivens claims alleged the violation of clearly established law. 10 The court, therefore, "erred in deciding the heightened pleading issue before deciding the threshold "essentially legal question whether the conduct of which the defendant complains violated clearly established law.' " Kartseva v. Department of State, 37 F.3d 1524, 1530 (D.C. Cir. 1994) (quoting Siegert v. Gilley, 500 U.S. 226 (1991) (emphasis original)). Furthermore, it has not been clearly established that malicious prosecution violates any constitutional or statutory right. 11 Accordingly, the postal inspectors' qualified immunity defeats Moore's malicious prosecution claim. Harlow, 457 U.S. at 818. Moore's retaliatory prosecution claim, however, does allege the violation of clearly established law. 12

In publicly criticizing the USPS Moore unquestionably exercised his first amendment rights. Record evidence manifests that the criticism produced hostility in USPS management. Joint Appendix (JA) 154-156, 283. Two of the postal inspectors, who reported to USPS management, heard and did not repudiate Valder's declaration that Moore's innocence was irrelevant to the prosecution he intended to pursue. JA 32. These facts taken together constitute evidence sufficient to meet any applicable heightened pleading standard 13 and, accordingly, we remand Moore's retaliatory prosecution claim against the postal inspectors.

C. Claims Against the United States

The district court dismissed Moore's FTCA claims for lack of subject matter jurisdiction, holding that the alleged misconduct fell within the FTCA's "discretionary function" exception. We review the dismissal de novo but construe Moore's allegations in his favor. Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). 14 We hold that only some of the alleged misconduct is covered by the exception.

The FTCA waives the sovereign immunity of the United States from suits for negligent or wrongful acts of government employees subject to certain exceptions. See 28 U.S.C. §§ 2671-2680. The "discretionary function" exception protects the federal government from liability for "[a]ny claim based upon ... the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). The exception "preserves the preexisting cloak of governmental immunity for some category of activities." Gray v. Bell, 712 F.2d 490, 508 (D.C. Cir. 1983), cert. denied, 465 U.S. 1100 (1984). We "must examine carefully the allegations made to determine whether they are sufficiently separable from protected discretionary decisions. If such separability exists, then the conduct of the prosecutor may be actionable under the FTCA." Id. at 515. But where the "allegation of improper investigatory conduct is inextricably tied to the decision to prosecute and the presentation of evidence to the Grand Jury," the discretionary function applies and preserves governmental immunity. Id. at 516.

Deciding whether to prosecute, assessing a witness's credibility to ensure that he is giving an accurate and complete account of what he knows, identifying the evidence to submit to the grand jury and determining whether information is "exculpatory" and "material" and therefore must be disclosed pursuant to a Brady request 15 are actions that require the prosecutor to exercise his professional judgment. They are therefore quintessentially discretionary. 16 Accordingly, the United States enjoys immunity from Moore's claims that Valder and the postal inspectors pressured witnesses into incriminating him, concealed and distorted exculpatory evidence to create a false impression of what he knew about the fraud schemes and withheld material exculpatory information from him after the grand jury returned an indictment.

Disclosing grand jury testimony to unauthorized third parties, however, is not a discretionary activity nor is it inextricably tied to matters requiring the exercise of discretion. Rather, it is a discrete activity, sufficiently separable from protected discretionary decisions to make the discretionary function exception inapplicable to this allegation. We express no view whether the allegation is otherwise cognizable under the FTCA or whether it is supported by the evidence.

We therefore affirm in part, reverse in part and remand to the district court for proceedings consistent with this opinion.

So ordered.

Footnotes

1 The postal inspector defendants-appellees are Michael Hartman, Frank Korman, Robert Edwards, Pierce McIntosh, Daniel Harrington and Norman Robbins.

2 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (recognizing a cause of action for damages against officials who violate constitutional or statutory rights under color of federal law).

3 The complaint also asserted other constitutional and common-law tort claims which were dismissed by the district court. Moore does not appeal the dismissal of those claims.

4 We do not read Moore's complaint to allege that Valder or the postal inspectors manufactured false evidence to incriminate Moore. The complaint, construed favorably to Moore, alleges only that the written witness statements, prepared by Valder and the postal inspectors and submitted to the grand jury, created false impressions because they omitted important exculpatory testimony. Joint Appendix (JA) 377-78.

5 According to the district court, "Valder was performing judicial and quasi-judicial functions. All of Valder's conduct relevant to this case was preparatory to presenting a case against Moore to the grand jury. The face of the complaint compels the conclusion that all of the acts attributed to Valder were prosecutorial functions...." JA 340.

6 Additionally, "whether to present a case to a grand jury, whether to file an information, whether and when to prosecute, whether to dismiss an indictment against particular defendants, which witnesses to call, and what other evidence to present" are advocatory decisions. Imbler, 424 U.S. at 431 n.33.

7 And as the Supreme Court explained:

A prosecutor may not shield his investigative work with the aegis of absolute immunity merely because, after a suspect is eventually arrested, indicted, and tried, that work may be retrospectively described as "preparation" for a possible trial.... When the functions of prosecutors and detectives are the same ... the immunity that protects them is also the same.

Buckley, 113 S. Ct. at 2617.

8 While we conclude that absolute immunity does not protect Valder, he of course would be entitled to any qualified immunity available to the postal inspectors. Qualified immunity protects a government official who performs discretionary functions from liability for civil damages if he can show that his actions did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

9 As an initial matter, we reject Moore's argument that the district court here was precluded from reconsidering the Texas district judge's conclusion that Moore had "asserted a set of facts supporting each claim that, if found to be true regarding the element of malice, would overcome defendants' qualified immunity defense and entitle him to relief." JA 343-44. We first observe that the Texas district judge should not have ruled on the immunity issue because he found that he lacked personal jurisdiction over the postal inspectors. More importantly, we iterate that the district court below is bound to follow the law of this circuit. See, e.g., 1B Moore's Federal Practice ("The district courts owe obedience, each to the court of appeals in its own circuit. It may happen, therefore, that a decision in the transferor court is in accordance with the view of the law as established by the court of appeals in its own circuit, but in the transferee circuit the law is either unsettled, or settled to the contrary.... If the issue has been settled ... the transferee court finds itself suspended between the doctrine of stare decisis and the doctrine of the law of the case. In such a circumstance the transferee court would invite reversal if it did not follow the decisions of its own court of appeals.").

10 The parties appear to agree that prosecution in retaliation for speech protected by the first amendment violates a clearly established right. See infra note 12. Although the parties disputed whether the malicious prosecution claim survived the qualified immunity defense, the district court expressly found that it "need not address the question" because of its ruling that Moore's allegations were otherwise deficient. JA 355.

11 See Sami v. United States, 617 F.2d 755, 773 (D.C. Cir. 1979) (citing with approval cases holding that "it takes more than a false arrest or malicious prosecution claim to rise to the dignity of a constitutional violation"); see also McLaughlin v. Alban, 775 F.2d 389, 392 (D.C. Cir. 1985) (concluding that plaintiff must "show not merely a mistaken prosecution or even a common law tort, but the violation of a constitutional right" to establish section 1983 claim); Torres v. Superintendent of Police of Puerto Rico, 893 F.2d 404, 409 (1st Cir. 1990) (holding section 1983 provides remedy only if plaintiff proves elements of malicious prosecution under state law and establishes that misuse of the legal proceedings was so egregious that he suffered deprivation of rights secured by fourteenth amendment) (citations omitted).

12 See, e.g., Haynesworth v. Miller, 820 F.2d 1245, 1255-57 (D.C. Cir. 1987) (agreeing that "retaliatory prosecution [allegedly initiated solely because plaintiff refused to release civil claims of police misconduct against arresting officers] constitutes actionable First Amendment wrong"); see also Norwell v. Cincinnati, 414 U.S. 14, 16 (1973) (per curiam) (finding first amendment violation in retaliatory prosecution for "nonprovocatively voicing [ ] objection" to police conduct); DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990) ("An act taken in retaliation for the exercise of a constitutionally protected right is actionable under § 1983 even if the act, when taken for a different reason, would have been proper.") (quoting Matzker v. Herr, 748 F.2d 1142, 1150 (7th Cir. 1984)); Magnotti v. Kuntz, 918 F.2d 364, 368 (2d Cir. 1990) ("It is undisputed that retaliatory prosecution may expose a state official to section 1983 damages."); Losch v. Parkesburg, 736 F.2d 903, 907-08 (3d Cir. 1984) ("[I]nstitution of criminal action to penalize the exercise of one's First Amendment rights is a deprivation cognizable under § 1983.") (citing Wilson v. Thompson, 593 F.2d 1375, 1377 (5th Cir. 1979)).

13 In Kartseva v. Department of State, 37 F.3d 1524, 1530-31 (D.C. Cir. 1994), we explained this circuit's two-level heightened pleading standard.

14 Because we accept Moore's version of the facts, we reject his argument that the district court should not have decided whether the discretionary function exception applied without permitting Moore an opportunity to conduct discovery and develop a "concrete record."

15 We recognize that internal regulations of the Department of Justice direct that "when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence which directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person." Department of Justice Manual, 9-11.233 (October 1, 1990). Putting aside the question whether this regulation creates any enforceable right, we note that deciding what this regulation requires under a specific set of circumstances is itself a discretionary act.

16 We are guided by our decision in Gray where we held that allegations that the defendants "deliberately present[ed] false and misleading evidence to and with[held] exculpatory evidence from the Grand Jury" are within the discretionary function exception because they are "insufficiently separable from the discretionary decision to initiate prosecution." 712 F.2d at 495, 516.