D.C. Circuit Considers Qualified Immunity in Grand Juror Lawsuit

By Robyn Hagan Cain on October 26, 2012 | Last updated on March 21, 2019

Most people employ creative excuses to avoid jury duty. Peter Atherton has spent eight years arguing that he was improperly removed from a grand jury.

In 2009, the D.C. Circuit Court of Appeals concluded that the officials who removed Atherton were not entitled to absolute immunity for their decision. Now, the appellate court is reviewing the case once more to decide if the officials should receive qualified immunity.

On April 9, 2001, Peter James Atherton was sworn in as a District of Columbia Superior Court grand juror. The grand jury was scheduled to deliberate for 25 days, but Atherton was permanently removed from grand jury service on April 11 after an Assistant United States Attorney reported to the supervising AUSA, Daniel Zachem, that the jurors were complaining about Atherton.

After meeting with members of the grand jury, Zachem contacted the Director of Special Operations at the Superior Court, Roy Wynn, who directed him to juror officer Suzanne Bailey-Jones. Zachem discussed the matter with Bailey-Jones and then returned to the jury room, took Atherton's notes, and told him to report to the Juror Office. Bailey-Jones then removed Atherton from the grand jury for being "disruptive."

That was it. No written explanation. No hearing.

Atherton sued Bailey-Jones, Wynn, Zachem, and several other city and federal officials -- as well as the District of Columbia and the Attorney General's Office -- claiming that he was unlawfully removed from grand jury service because of his deliberative judgments and his Hispanic ethnicity.

The district court granted the defendants' motions to dismiss the complaint. The D.C. Circuit Court of Appeals revived Atherton's case against Bailey-Jones and Zachem for due process and equal protection violations two years later, finding that the defendants did not enjoy absolute immunity for removal of a grand juror.

Earlier this month, the D.C. Circuit heard the parties' oral arguments. The defendants' lawyers maintain that the officials have qualified immunity because -- at the time Atherton was removed -- there was no clearly-established right that would have put court officials and prosecutors on notice that their actions were unlawful, reports the Blog of Legal Times.

(The Superior Court rules in 2001 simply indicated that the chief judge, or a designee, had the power to remove a grand juror.)

Regardless of the outcome in Atherton's case, the scenario is unlikely to be repeated. The court revised its rule to require that the chief judge be consulted before a juror is removed from a grand jury panel, according to Crime in the Suites.

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