You can't sue the prosecutor

This case is something out of a movie. In the late 1980's business owner D'Alessandro suspected that his employee was stealing money from him. The employee alleged that D'Alessandro confined him in the basement for over 12 hours. D'Alessandro was arrested and convicted of kidnapping and related offenses. In 2010, the Appellate Division vacated the conviction because D'Alessandro's lawyer had failed to make a proper speedy trial motion prior to trial. D'Alessandro now sues the prosecutors.

The case is D'Alessandro v. City of New York, a summary order decided on October 17. D'Alessandro's case is dismissed. The first thing you need to know is that it is difficult, nearly impossible, to sue the prosecutor. Courts grant them immunity because, let's face it, they would be sued by every person they ever prosecuted. Specifically, if the prosecutor is sued over things he did as an advocate, there is no lawsuit. That includes matters the prosecutor handled while preparing for trial and trial itself. This immunity even applies if the prosecutor makes false statements during proceedings, or when he knowingly uses false testimony, deliberately withholds evidence favorable to the defendant and engages in malicious prosecution.

D'Alessandro says that defendant Morris failed to acquire a signed indictment, withheld exculpatory evidence, manufactured evidence, delayed production of grand jury minutes, etc. But since these acts took place when Morris was engaged in facts "intimately associated with the judicial phase of the criminal process," Morris is immune from suit. The same analysis applies to D'Alessandro's claim against Robert Morganthau, who was the DA at the time, and a legendary one at that.

Probably every civil rights lawyer receives phone calls from people who want to sue the prosecutor, even the judge. I tell potential clients that these cases cannot be filed (with very limited exceptions). People don't want to hear this, as the prosecutor and judge are the symbols of a system that shafted them. Of course, these immunities are judge-made doctrines. That only adds to the cynicism. Like it or not, these immunities will always be with us.