Mr. Atherton was summarily removed from a D.C. grand jury by a court official in 2001, apparently because he asked too many pesky questions. Acting pro se, he sued those he thought were responsible.
In June 2009, the D.C. Circuit reversed the district court’s grant of absolute prosecutorial immunity to a supervisory United States Attorney who had been involved in the removal. Prosecutors are entirely immune from suit for the prosecutorial actions they take (such as charging a case, examining a witness, or making an argument in court), but the court here found that the prosecutor had been acting in an administrative rather than prosecutorial capacity. The case was remanded to the district court to consider the prosecutor’s claim of another type of immunity, qualified immunity. But the prosecutor filed a petition for Supreme Court review on the absolute immunity issue.
We agreed to represent Mr. Atherton in opposing that petition, explaining that the court of appeals’ decision was correct and in accord with decisions of other circuits. The petition was denied. On remand (with new counsel), the district court ruled that the prosecutor was entitled to qualified immunity, and in February 2013 the court of appeals affirmed. Judge Rogers, concurring, urged the Superior Court to fix its procedures regarding removal of grand jurors, and the court did so, making it clear that only a judge can exercise that power.