And although the Court did not expressly state an opinion as to whether these decisions would be protected by absolute immunity, the Court stated: "Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence." Id.
Then came Burns v. Reed, 500 U.S. 478, 492, 114 L. Ed. 2d 547, 111 S. Ct. 1934 (1991), which found a prosecutor to be absolutely immune from liability arising from his actions at a probable cause hearing. For his legal advice to police he has only qualified immunity. Burns, 500 U.S. at 496. The principle applied was a "functional approach" which looks to "the nature of the function performed, not the identity of the actor who performed it." Id. at 486 (quoting Forrester v. White, 484 U.S. 219, 229, 98 L. Ed. 2d 555, 108 S. Ct. 538 (1988). The Court emphasized that the duties included within a prosecutor's role as an advocate for the State involved actions performed outside the courtroom and actions preliminary to the actual initiation of a criminal prosecution. Burns, 500 U.S. at 486.
Finally, there is Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993). The prosecutors were alleged to have manufactured false evidence by shopping for experts who would give an opinion they wanted. Since all of this occurred before they had probable cause or had even convened a grand jury, this was "police work" for which there was no absolute immunity. Buckley, 113 S. Ct. at 2616-17. Neither, said the Court, were post-indictment press conferences a prosecutorial function. 113 S. Ct. at 2618.
Roughly stated, absolute immunity attaches to prosecuting but not to investigating or administering, neither of which relates to the advocate's preparation for the initiation of a judicial proceeding. Id. at 2615. This rough line is obviously hard to apply. The paradigm act of prosecution, calling and presenting a witness at trial will necessarily require investigation (interviewing the witness, showing the witness physical evidence, etc.) and administration (ordering the police to find the witness and give the witness a ride to court, etc.).
All of this the Supreme Court recognized in Buckley where it said that absolute immunity must include acts of "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 . . . There is a difference between the advocates role in evaluating evidence and interviewing witnesses as he prepares for trial . . . and the detectives' role in searching for the clues and corroboration that might give him probable cause to [arrest]. A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested." Buckley, 113 S. Ct. at 2615-16.
In Evans v. County of Cook, 1995 U.S. Dist. LEXIS 18231, 1995 WL 733451 (N.D. Ill. 1995), I found absolute immunity to protect a prosecutor who allegedly did a bad job by not carefully weighing the justice of a domestic battery charge, delaying investigation of the charge and persisting in the charge after the complaining witness wanted to drop it. There are other cases which hold prosecutors immune from suit for ignoring evidence and failing to investigate. See Glick v. Koenig, 766 F.2d 265, 269 (7th Cir. 1985); Elder v. Athens, 54 F.3d 694, 695 (11th Cir. 1995).
On this line of cases, defendant relies for dismissal.
In response the plaintiff concedes all of this analysis. Rabinowitz is liable, says the plaintiff, because he was not really exercising a prosecutor's function because he was not acting to decide whether to proceed with the case or to prepare for prosecution. He was assigned to evaluate the case and report to a supervisor who would decide what to do and how to do it. And his true failing was maliciously to misrepresent his investigative results to his supervisor. So he was the functional equivalent of a police officer sent out by a prosecutor to investigate and report back.
No case which addresses this issue is cited to me. Perhaps plaintiff argues that in a multi-prosecutor office, only one prosecutor has absolute immunity, the decision-making prosector. But, prosecution is often a joint enterprise and recommendations are exchanged and debated. Preparing part of a case, examining fact and law for another prosecutor's use is part of the prosecution function. Assume in the midst of trial, the chief prosecutor assigns an assistant to interview a witness and recommend whether or not to call the witness. The assistant reports on what occurred and recommends calling the witness who turns out to be good for the prosecution but, in fact, unreliable. I doubt that the assistant prosecutor is not absolutely immune. As noted by the Court in Imbler, prosecutors are often faced with conflicting evidence, "shady" witnesses, and tough decisions regarding whether a case should be brought against a particular defendant. Imbler, 424 U.S. at 426 n.24. These decisions (which evidence to present at trial, which witnesses to call, and whether a case should even be brought in the first place), although technically occurring before the actual trial, should be protected by absolute prosecutorial immunity. The Court even noted that absolute immunity protects a prosecutor who willfully uses perjured testimony and who willfully suppresses exculpatory information. Id. at 431 n.34.
Marshall Spiegel's counsel, perhaps tongue in cheek, characterizes absolute immunity as having "Narrow confines." For this he cites a line from Burns v. Reed which refused to extend immunity to any action related in any way to the ultimate decision whether to prosecute. The Court said "we have never indicated that absolute immunity is that expansive." Burns, 500 U.S. at 495. How one bases a conclusion that a doctrine is narrowly confined from the statement that the doctrine is not so expansive as to cover any act by prosecutor is a little beyond me. It may be similar to what Rabinowitz is supposed to have done in reporting to his superiors.
Absolute immunity is not a narrow doctrine. Its ambit is quite broad and, when the doctrine is criticized, it is hard to find a commentator who says it is too narrow.
There is very little law on this question.
We know that a police officer who gives false evidence to a prosecutor cannot escape liability by using the prosecutor's decision to proceed as shield. Jones v. Chicago, 856 F.2d 985 (7th Cir. 1988). And both the Court of Appeals and another District Judge have opined that a prosecutor who concocts evidence and deceives superiors during the investigation of the case would not be absolutely immune. Buckley v. Fitzsimmons, 20 F.3d 789, 796-97 (7th Cir. 1994); Buckley v. County of DuPage, 1996 U.S. Dist. LEXIS 162, 88 C 1939 (N.D. Ill. 1996) (Coar, J.). None of these cases addresses the crucial question here. In Jones, the persons sued were police officers who do not possess absolute immunity. In the Buckley cases, both courts were dealing with actions by prosecutors who already had been found to be acting outside the prosecutorial function. Neither court was faced with a claim against a prosecutor who was pursuing a matter in which a charge had already been filed. There is a single passage in Judge Easterbrook's opinion in Buckley that is suggestive of an answer: "If the prosecutors themselves had concocted the evidence,...the immunized prosecutorial decisions would be the cause of the injury...They induced two experts to give testimony more damaging to Buckley than these experts' initial notes and reports suggested. These wrongs, if they are wrongs at all, occurred at trial...and do not support an award of damages." Buckley, 20 F.3d at 797.
This suggests the answer in this case that Rabinowitz is absolutely immune. What he did occurred after the charge had been filed and after prosecution had commenced. His sin, misrepresenting the evidence to his superior, is surely less grievous than concocting evidence. Whatever lies he told his superior do not prevent the truth from prevailing at trial, while concocting evidence, and presenting that evidence at trial may well have that effect.
The better reading of the Supreme Court jurisprudence is that the context is important. What a prosecutor does after a charge is filed (and after the charging process has begun) is covered by the cloak of absolute immunity. We know that there is a temporal limit to absolute immunity. It begins with the charging process, it also ends when the prosecution is over and the prosecutor moves on to other matters. Thus, a prosecutor who discovers exculpatory evidence after trial and after she has left the case, and then fails to disclose it, is not absolutely immune. See Houston v. Partee, 978 F.2d 362, 365-68 (7th Cir. 1992) (no historical warrant for extending absolute immunity to prosecutors who fail to disclose exculpatory evidence acquired when they are no longer personally prosecuting the criminal case).
In Boyd v. Village of Wheeling, No. 83 C 4768, 1985 WL 2564 (N.D. Ill. 1985), Assistant States Attorney Zehe was called to the police station immediately after Boyd had been questioned by the police. Boyd complained to Zehe of coercive and improper police action, then Zehe began to question the plaintiff himself. Boyd sued Zehe and argued that Zehe had acted as an investigator during the interrogation, and could not assert absolute immunity. Judge Grady dismissed the action, stating:
In this case, Zehe was not called to the station until long after plaintiff was first detained and the questioning began. In fact, Zehe was not called until after plaintiff had confessed. It is reasonable, indeed desirable, that Zehe question plaintiff himself to verify the confession obtained by the police before making his own decision whether or not to file charges. Zehe did not participate in the decision to interrogate plaintiff for seven hours . . . We find, therefore, that Zehe's actions were part of his quasi-judicial function in gathering and evaluating evidence in order to make a prosecutorial decision whether or not to file charges. Zehe is absolutely immune from civil liability for his actions in connection with this case. Boyd, at *11.