Tuesday, January 05, 2010

No "absolute immunity" for County Attorney who participated in illegal search

SCOTUS may not get the chance to decide on the limits of prosecutorial immunity, but the 5th Circuit recently ruled in a case out of Seguin that prosecutors' immunity for trial activities does not apply to investigative work or to "the prosecutorial function of giving advice to police." Reported the Courthouse News ("County attorney can be sued over pet seizure," Dec. 18):
A Guadalupe County attorney is not immune from a lawsuit accusing her of illegally entering a Texas woman's home and helping to remove 47 dogs and cats, the 5th Circuit ruled.

Prosecutorial immunity shields a prosecutor's role of evaluating evidence and interviewing witnesses before trial, not the detective work that forms the basis of a complaint or prosecution, the New Orleans-based appeals court noted.

County attorney Elizabeth Murray-Kolb and three other county officials took the pets from Suzanne Hoog-Watson based suspicions of animal neglect. They had also heard that Hoog-Watson moved to a mental institution - a rumor that turned out to be false. ...

The district court dismissed the federal claims, and Hoog-Watson appealed.

She argued that the county attorney's involved role in the search and removal of her pets disqualified Murray-Kolb for prosecutorial immunity. The 5th Circuit agreed, reversing dismissal of the federal claims and reviving the claims against Murray-Kolb.

Though prosecutors are immune for their role in evaluating evidence, "this is not the case, because Murray-Kolb evaluated the conditions at Hoog-Watson's property as part of the effort to assemble evidence," Judge Jennifer Walker Elrod concluded (original emphasis).
See the full opinion (pdf). The court expressed no opinion on whether the county attorney might be entitled to "qualified immunity" for her role, declaring that the issue should be argued on remand.



The Team said...

Great topic.
We keep hearing about prosecutorial immunity enjoyed by the very individuals charged with seeking justice. In this case, we see one playing animal control officer in her spare time and claiming it as she has for her entire career.

Here is a joke called the “Not It” clause. A prosecutor works the "Intake" and decides to take out charges on the word of the Detectives. A prosecutor evaluates the evidence and has sole discretion on what to hide and what to present to the grand jury without the accused and his/hers counsel present.

After the conviction, a person can purchase the police report and the entire case file. When one discovers that he/she was charged with a felony that isn't supported by the evidence, and learns that his/her attorney ignored it and persisted with a plea bargain, the immediate reaction is to seek a full pardon.

This immunity comes in to play when one receives the denial notice. Forget about the chance in hell one may have in getting the three trial officials (Sheriff, DA and Judge) to unanimously agree to vote in favor of a pardon for innocence. It is not happening. Where is the incentive?

Wake up Texas taxpayers, while prosecutors are enjoying the "Not It" clause, we are paying out $80,000.00 plus, plus, per year, per wrongful conviction.

Note: talking about it is a start but at some time, we’ll have to do something about it. How the hell do we in Texas go about doing away with it? Does anyone have a solution to offer?

Anonymous said...

Extremely rare holding. Particularly from the 5th Circus. Please give the names of the Justices on the panel and the name applied to the opinion as Author.

Gritsforbreakfast said...

Jennifer Elrod wrote the opinion. Barksdale and Dennis were the others on the panel.

Anonymous said...

I always liked Elrod as a trial judge. Bush definitely got that appointment right, she's a smart lady.