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Third Circuit Denies Prosecutor’s Claim of Absolute Immunity Where Wrongfully Convicted Man’s Complaint Alleged Facts Sufficient to Support Finding That Prosecutor’s Actions Served ‘Investigatory Function’

by Douglas Ankney

 

The U.S. Court of Appeals for the Third Circuit affirmed the U.S. District Court for the Middle District of Pennsylvania’s denial of absolute immunity to a prosecutor where the complaint alleged facts sufficient to support a finding that the prosecutor’s acts served an investigatory function.

Larry Trent Roberts served 13 years in prison for the murder of Duwan Stern – a murder Roberts did not commit. After a new trial wherein Roberts was acquitted, he filed suit pursuant to 42 U.S.C. § 1983, alleging six claims related to his wrongful conviction. He named several state actors as defendants.

In Count II of the complaint, Roberts alleged Assistant District Attorney John C. Baer “fabricated evidence by way of knowingly influencing, enticing, and coercing an inculpatory statement from Layton Potter: a jailhouse snitch, who lacked any credibility, whose statement could not be corroborated, and was only concerned with benefitting himself.”

In Count IV, Roberts alleged that Detective David Lau “and Baer conspired to fabricate evidence for the purpose of convicting an actually innocent man” when Lau and Baer “knowingly sought out, influenced, and coerced an inculpatory statement from Potter.” According to Roberts’ complaint, a hole developed in the prosecution’s already weak case after Detective David Lau’s attempt to persuade another witness to fabricate evidence of a conflict between Roberts and the victim failed.

Baer then took matters into his own hands and joined Lau’s investigation. Roberts alleged that Baer “began affirmatively seeking a jailhouse snitch who would testify as to motive. [O]ne month before trial ... Baer and ... Lau’s investigation led them to ... [Layton] Potter, a known jailhouse snitch.” Baer was aware that Potter “lacked any credibility because he had been convicted of making false reports to law enforcement in the past. But Baer ‘approached ... Potter’ anyway; ‘asked [Potter] if he wanted a piece of the case against ... Roberts;’ and ‘knowingly ... influenced, enticed, and coerced’ Potter to provide false testimony establishing motive.”

Baer moved to dismiss the counts against him on grounds that, as a prosecutor, he has absolute immunity. The District Court determined that Baer’s alleged conduct served an investigative function and denied the motion to dismiss. Baer timely appealed.

The Third Circuit observed “[o]ur analysis of whether a prosecutor is entitled to absolute immunity ‘has two basic steps, though they tend to overlap.’” Fogle v. Sokol, 957 F.3d 148 (3d Cir. 2020). “First, we ascertain just what conduct forms the basis for the plaintiff’s cause of action. Then, we determine what function (prosecutorial, administrative, investigative, or something else entirely) that act served....” Id. “To earn the protections of absolute immunity at the motion-to-dismiss stage, a [prosecutor] must show that the conduct triggering absolute immunity clearly appears on the face of the complaint.” Id. “When deciding whether absolute immunity applies, [the Court] ‘examine[s] the nature of the function performed, not the identity of the actor who performed it.’” Kalina v. Fletcher, 522 U.S. 118 (1997). Consequently, “prosecutors are not entitled to absolute immunity when they perform the investigative functions normally performed by a detective or police officer.” Buckley v. Fitzsimmons, 509 U.S. 259 (1993).

However, prosecutors “are absolutely immune from liability under § 1983 for engaging in conduct that serves a quasi-judicial function.” Kulwicki v. Dawson, 969 F.2d 1454 (3d Cir. 1992).

In the present case, the Court stated the “allegations that Baer went looking for a new witness to provide false testimony describe an investigator’s work ‘seeking to generate evidence in support of a prosecution,’ not an advocate’s work ‘interviewing witnesses as he prepare[s] for trial.’” Fogle.

Baer, relying on Buckley, argued for a bright-line rule that a prosecutor’s alleged search for a new witness that occurs post-charge and is designed to produce inculpatory evidence for trial serves a prosecutorial function. The Court was not persuaded. While Buckley held that a prosecutor’s conduct pre-charge is evidence that he was not acting as an advocate for the government (i.e., there is no case to “prosecute” before anyone is charged), the inverse is not true, the Court stated. Merely because a prosecutor’s acts occurred after charges were filed does not automatically mean those acts are quasi-judicial. Indeed, detectives may continue investigating a crime and generating evidence after charges are filed. And the fact that the evidence was generated for use at trial does not help the argument. The Court reasoned that “[d]etectives generate inculpatory evidence for trial. But they are not quasi-judicial advocates entitled to absolute immunity.” Buckley.

Baer also argued that his conduct served a prosecutorial function because it “occurred only one month prior to trial and for the purpose of getting Potter to testify at trial.” Baer supported his argument with Yarris v. County of Delaware, 465 F.3d 129 (3d Cir. 2006), “which held that prosecutors were entitled to absolute immunity for allegedly using ‘stick and carrot treatment to elicit ... false testimony’ from a jailhouse informant.” Roberts countered that Fogle held that prosecutors are not entitled to absolute immunity when “solicit[ing] false statements from jailhouse informants” and “deliberately encourag[ing] ... State Troopers to do the same.” The Court, expressing that it was a “close call,” determined Roberts had the better argument. The Court observed that Baer’s alleged conduct of identifying Potter to solicit false testimony was “nearly identical to the prosecutors’ alleged conduct in Fogle, recruiting jailhouse informants.”

“Second, like the plaintiff in Fogle, Roberts provided detailed allegations describing the actions that Baer took to find a new jailhouse informant and coerce him to provide false testimony.” In contrast, the plaintiff in Yarris “vaguely alleged that prosecutors used ‘stick and carrot treatment to elicit ... false testimony’ and ‘did not describe in detail when or how the prosecutors obtained a false statement from a jailhouse informant.”

The Court stated that the detailed allegations helped to “reduce the risk of vexatious litigation, as it is more difficult for a plaintiff with a frivolous claim to provide in a complaint detailed allegations of prosecutorial misconduct than vague ones.” Van de Kamp v Goldstein, 555 U.S. 335 (2009) (explaining that one of the reasons the U.S. Supreme Court extended absolute immunity to prosecutors was “the general common-law concern that harassment by unfounded litigation could both cause a deflection of the prosecutor’s energies from his public duties and also lead the prosecutor to shade his decisions instead of exercising the independence of judgment required by his public trust”).

Finally, the Court determined that Baer “place[d] too much weight on the allegation from Fogle that prosecutors participated in ‘a long chain of investigative events’ stretching back before there was probable cause to bring charges.” While Fogle did refer to the long chain of investigative events, it only did so to explain why the prosecutors sought out jailhouse informants to obtain fabricated testimony. The Court explained that merely explaining the prosecutors’ motive had no bearing on the Fogle Court’s conclusion that their acts served an investigative function.

The Court stated that Baer “‘played the detective’s role to search for ... clues and corroboration’ when he went looking for a new jailhouse informant, found Potter, approached Potter, and knowingly influenced, enticed, and coerced Potter to provide false testimony.” Fogle. “[W]hen the functions of prosecutors and detectives are the same, as they were here, the immunity that protects them is also the same.” Buckley.

The Court concluded that Baer was “not entitled to absolute immunity because his alleged conduct served an investigative function.” However, the Court cautioned that it reached this conclusion because, at the motion-to-dismiss stage, the Court accepts as true the factual allegations in the complaint. It may be the case that during discovery, evidence may come to light that the events transpired in such a manner as to show that Baer was acting as an advocate or in a “quasi-judicial” function, and he could reassert his claim for absolute immunity, the Court explained.

Accordingly, the Court affirmed the District Court’s order denying Baer’s motion to dismiss. See: Roberts v. Lau, 90 F.4th 618 (3d Cir. 2024).

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Related legal case

Roberts v. Lau

 

 

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