Convict cleared by DNA testing cannot sue DA's office

One of the biggest advances in forensics over the last few decades is DNA testing for criminal convicts found to be innocent of their crimes and set free. One of the rock-solid principles of civil rights law is that you cannot sue the prosecutor in connection with his advocacy against you as a criminal defendant. These concepts intersected in Douglas Warney's case before the Second Circuit.

The case is Warney v. Monroe County, decided on November 13. As the Court of Appeals opens up the narrative, "Douglas Warney was wrongfully convicted and jailed for ten years." His story sounds like something out of John Grisham's non-fiction book, An Innocent Man. Warney has a 68 IQ and an eighth-grade education. A fellow in Rochester, William Beason, was fatally stabbed in his own apartment after a violent struggle, and there was blood evidence all over the place as well as fingerprints. After Warney called the police to say that he "knew of" Beasley, the police questioned Warney, who confessed to the crime after an abusive interrogation. The confession contained inconsistencies which should have signaled to the police that Warney probably didn't do it. At trial, experts said that the blood on the murder weapon and other blood evidence as well as a mystery fingerprint did not match Warney's. The jury convicted Warney anyway.

Post-trial, the district attorney's office would not allow Warney's lawyer access to the evidence he needed to conduct DNA testing. Meanwhile, while the case was still winding through the courts on appeal, the DA's office did test the blood and found that the DNA was not Warney's. As he sat around in jail, the DA waited 72 days to tell Warney's lawyer that Warney was exonerated. Later on, someone else confessed to the murder, and the court vacated Warney's conviction.

This all makes Warney's case against the district attorney a sympathetic one. But Warney cannot win his civil rights case alleging the unlawful failure to promptly disclose exculpatory evidence, the Second Circuit (Jacobs, Newman and Pooler) holds. Under a 1976 Supreme Court decision, you can't sue prosecutors for any acts taken in the course of their official duties as advocates. Otherwise, every other convict would sue the DA who brought the charges. There is no immunity for prosecutors, however, for acts taken in the course of their administrative duties or investigatory functions unrelated to the DA's preparation for judicial proceedings. This is a fine line.

Warney loses this civil case. Once the conviction is final, the prosecutor still works on the case, defending against appeals and habeas corpus challenges in federal court and pursuing parole violations. Having said that, federal courts are all over the place on this precise issue. Addressing this issue for the first time, the Second Circuit holds that there is "no principled reason to withhold absolute immunity for work performed in defending a conviction from collateral attack," i.e, on appeal and in other contexts. Warner cannot win his case because the DNA exoneration happened while his case was still in the "judicial phase." The prosecutors were still functioning as advocates in the context of Warner's post-conviction challenges. That the DA's office withheld the DNA results for 72 days does not change the analysis. The Court of Appeals sums up as follows:

[T]he steps taken here--testing, disclosure, and even the delay in making disclosure, as well as the identification of the real killer–-were integral to and subsumed in the advocacy functions being performed in connection with Warney’s post-conviction initiatives. The decisions made by the prosecutors in this case--whether to test for potentially inculpatory (or exculpatory) information, how and when to disclose or use that information, and whether to seek to vacate Warney’s conviction--were exercises of legal judgment made in the “judicial phase” of proceedings integral to the criminal justice process.