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April 8, 1996


The opinion of the court was delivered by: ZAGEL

 Marshall C. Spiegel, a member of the Chicago Mercantile Exchange, was at home with his wife, Carol, and young son at 5:00 p.m. on Wednesday, May 29, 1993. All three of them were disturbed by a hammering noise from the apartment directly above them. Disturbing noises from above have occurred in the past. After enduring the noise, Carol Spiegel went upstairs to complain and to ask for silence. This lead to an argument between Carol Spiegel and the upstairs tenants, Loren Cherny and Mim Bobbin. Marshall Spiegel, hearing the argument, picked up his son and went upstairs. While he was upstairs, Mim Bobbin threatened Marshall Spiegel with death. Loren Cherny struck him in the back. Mim Bobbin also struck him. We are not told what happened between Marshall Spiegel's arrival upstairs and the threat and the blow. We are told what did not happen. Marshall Spiegel did not kick or knee or make offensive physical contact with either Loren Cherny or Mim Bobbin.

 On Friday, May 31, Marshall Spiegel reported to the police concerning the acts of Loren Cherny and Mim Bobbin.

 On Wednesday, June 23, criminal complaints were filed *fn1" charging Cherny and Bobbin with battery. Cherny and Bobbin learned of this, and on Friday, June 25, they complained themselves about Marshall Spiegel's actions on May 29. Criminal battery complaints were then issued against Spiegel.

 Daniel Rabinowitz was assigned to assess the case. Marshall Spiegel alleges that Rabinowitz did a wilfully incomplete and inadequate job. Rabinowitz read the police reports, talked with the police officers and interviewed all four persons present -- giving each a Miranda warning. What he did not do was uncover the fact that (1) Bobbin signed a written statement on June 1 in which she did not even say that Marshall Spiegel touched Cherny; (2) Cherny manufactured evidence by saying he photographed a bruise the day after the incident when it was clear from the developer's receipt that the photo was taken more than a week after the incident; *fn2" and (3) disinterested witnesses said that Marshall Spiegel did not strike Cherny but that Cherny and Bobbin struck him.

 Finally, Rabinowitz, it is alleged, was biased because Marshall Spiegel had sometime in the past filed charges with the Attorney Registration and Disciplinary Commission against a co-worker *fn3" of Rabinowitz. These charges resulted in Rabinowitz being ordered by his supervisor to prosecute another criminal case in which Marshall Spiegel was the complaining witness.

 Rabinowitz gave the results of his flawed investigation to his superiors. On top of this, he failed to report that Marshall Spiegel told him that Bobbin had followed plaintiff and pushed him from behind.

 The States Attorney decided not to pursue the complaints of Marshall Spiegel and proceeded with the case against Marshall Spiegel.

 Marshall Spiegel defended the charge and won acquittal. He paid a lawyer to defend him. He says that this complaint and subsequent trial caused his eviction, a loss of employment status and a loss of income.

 Finally, he says that Rabinowitz did this intentionally and maliciously.

 It is difficult to sue a prosecutor. They are immune. Their immunity extends only to their acts as prosecutors even if the acts are malicious. If they step over the line into, say, police work, they lose absolute immunity and are left with qualified immunity. This rule is invoked by plaintiffs' use of the mantra "factual investigation" when he describes what defendant did. I had thought that any prosecutor was still being a prosecutor even if she decided not to limit her assessment of a case to police reports. Interviewing witnesses is one way a prosecutor can assess the weight of a pending case. What I think, however, is not controlling; the Supreme Court jurisprudence is controlling, so I turn to that.

 In Imbler v. Pachtman, 424 U.S. 409, 420-424, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), the Supreme Court of the United States sanctified the widely accepted rule of absolute immunity for prosecutors. Imbler had received the death penalty for murder. He defended with an alibi offering his own testimony and that of another. The primary identification witness was one Costello. After trial, the prosecutor Pachtman wrote to the Governor of California describing evidence he later discovered which corroborated the alibi, as well as new revelations about Costello's background which made him seem less trustworthy than he had appeared at trial. Imbler eventually sued Pachtman claiming he conspired unlawfully to charge and convict Imbler through intentionally allowing false testimony, altering a police artist sketch and proceeding despite a lie detector test that "cleared" Imbler. The Court denied Imbler's right to sue. It said,

"If a prosecutor had only a qualified immunity, the threat of ยง 1983 suits would undermine performance of his duties no less than would the threat of common-law suits for malicious prosecution. A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor's office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State's advocate. Further, if the ...

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