Abdullah al-Kidd

Federal courts have recently refused to dismiss prosecutors including former U.S. Attorney General John Ashcroft as defendants in three high-profile civil-rights cases, ruling that they are not absolutely immune from liability.

Ashcroft invoked absolute immunity to the claims of Abdullah al-Kidd, a former University of Idaho running back who was detained by the FBI as a material witness in a computer terrorism case. The immunity applies to actions taken by a prosecutor while “performing the traditional functions of an advocate.”

Denying a motion to dismiss, U.S. District Judge Edward J. Lodge in Boise said al-Kidd's allegations relate to “actions which fall within the investigation realm of the type normally done by police.” Ashcroft, he ruled in Al-Kidd v. Gonzales, could be personally liable for “the development and implementation of a new policy and practice for use of the material witness statute as an investigative tool.”

Al-Kidd claims Ashcroft "created a national policy to improperly seek material witness warrants, oversaw the execution of such warrants, and failed to correct the constitutional violations of conducting such actions.”

The other rulings involve the civil-rights claims of former death row inmate Nicholas Yarris and a Columbia University graduate student.

In Yarris v. County of Delaware, the 3rd U.S. Circuit Court of Appeals said three Pennsylvania prosecutors are not absolutely immune from liability for withholding exculpatory DNA evidence from the plaintiff after he was convicted of capital murder in 1982. DNA tests eventually exonerated Yarris and he was released from death row in 2004.

“The prosecutors have not shown that their response to Yarris’s DNA test requests was part of their advocacy for the state in postconviction proceedings in which they were personally involved,” Judge Julio M. Fuentes wrote for the 3rd Circuit.

And in New York, a judge found that top sex-crimes prosecutor Linda Fairstein could be sued for making statements to the press about “cybersex torture” suspect Oliver Jovanovic “that can reasonably be described as beyond the scope of her official duties.”

Jovanovic, a doctoral candidate at Columbia, spent 22 months in prison after being convicted of raping a woman he had met online. The convictions were reversed on appeal and prosecutors dismissed all charges in 2001 rather than retry the case.

U.S. District Judge Paul A. Crotty also denied qualified immunity to Fairstein, finding that “A reasonable prosecutor would have known that Plaintiff's constitutional right to a fair trial might be violated by making a continuing stream of prejudicial extrajudicial statements.” Jovanovic v. City of New York.

By Matthew Heller
10/13/06