U.S. Fifth Circuit Court of Appeals
No. 19-40315 7/6/20
- Is an Assistant District Attorney entitled to prosecutorial immunity when performing investigative functions normally performed by a detective or police officer?
- Is a District Attorney—who supervises an ADA’s investigation but is not directly involved in the investigation—entitled to prosecutorial immunity?
- Is an Assistant Attorney General—who steps in as pro tem to appear before a grand jury to obtain a “re-indictment,” and relay a plea offer to the defendant—entitled to prosecutorial immunity?
- Is the Attorney General—who oversaw the Attorney General’s Office during the investigation at issue and allowed his staff to become involved as a pro tem—entitled to prosecutorial immunity?
- No. The Court concluded that the Assistant District Attorney did not qualify for absolute immunity because he was performing investigative functions as an investigator, rather than a prosecutor. Here, the Assistant District Attorney issued subpoenas for “bank records, phone records, credit card documents, personal records, emails, and various campaign-related vendor information,” and admitted he needed more time to investigate before he could secure an indictment because he did not yet have probable cause. The Court rejected the Assistant District Attorney’s argument that issuing subpoenas to obtain an indictment are part of the process of initiating a judicial proceeding and should apply prosecutorial immunity sooner in the criminal justice process.
- Yes. The Court relied on Van de Kamp v. Goldstein, 555 U.S. 335 (2009) in concluding that the District Attorney was not performing an investigative function—rather a prosecutorial function—in supervising the office. Additionally, there were no allegations that the District Attorney was involved in the investigation.
- Yes. None of the allegations showed that the Assistant Attorney General engaged in non-prosecutorial activity. Additionally, appearing before a grand jury to present evidence and obtain an indictment is the function of an advocate for the State to which prosecutorial immunity attaches. Finally, the Assistant Attorney General was entitled to immunity for the attempted plea bargain because plea bargaining activities are intimately associated with the judicial phase of the criminal process.
- Yes. None of these allegations overcame the Attorney General’s assertion of absolute prosecutorial immunity. The court indicated that, at best, they claim that the Attorney General failed to intervene in acts by the Assistant Attorney General, but the Court had already concluded those acts were not investigative and were entitled to prosecutorial immunity. Read Opinion.
Prosecutors should be very cautious in how they handle grand jury investigations (as opposed to simply presenting a case to the grand jury). That is especially so if the prosecutor is largely conducting the investigation, with the grand jury merely assisting. The court here makes clear that if one does “police” work, one will receive only the immunity afforded police officers, which isn’t absolute. Some reassurance can be taken from the court’s determination that the Assistant Attorney General who stepped in as a pro tem, as well as the elected District Attorney and the Attorney General, were entitled to prosecutorial immunity. The pro tem enjoyed absolute immunity because there was no factual indication that he was acting as an investigator, rather than an advocate for the State. And the elected prosecutors benefitted from absolute immunity because the alleged administrative acts or omissions involved supervising prosecution, as opposed to more mundane matters such as personnel or budgetary decisions to which prosecutorial immunity might not extend. Ultimately, then, the case is something of a mixed bag for prosecutors. Even so, it reaffirms that supervisory liability claims against elected prosecutors continue to be very difficult to successfully assert. Had the elected prosecutors been more actively involved in the grand jury investigation, however, the result could have been quite different.
Texas Courts of Appeals
No. 03-18-00759-CR 7/3/20
When an indictment charging a defendant with aggravated assault with a deadly weapon under Penal Code §22.02(a)(2) alleges a verbal threat, does evidence at trial of a non-verbal threat of displaying a piece of wood constitute a material variance that is insufficient to support a conviction?
Yes. Because the indictment alleged threatening the victim “by telling her that he was going to end her life,” proof of a verbal threat was required. A non-verbal threat—an act different from a verbal threat to end the victim’s life—would constitute a “distinguishable discrete act” that would separately violate the assault statute. In other words, a verbal threat would be “a different offense” from a non-verbal one—each act is a separate and distinct act of threatening. Read Opinion.
Always double-check your charging instrument far enough prior to trial that you can amend or re-indict the case. If you choose to amend, be sure the amendment is granted by the trial court and properly reflected in the papers of the case. Prosecutors often wonder if their evidence is sufficient to stand up on appeal—the answer is almost always yes if your charging instrument is correct.
No. 06-19-00146-CR 7/2/20
May a trial court impose attorney fees after the defendant was found indigent and the court appointed him counsel?
No. Because the trial court found the defendant indigent, he was presumed to remain indigent absent proof of a material change in his circumstances. Under Code of Criminal Procedure Art. 26.05(g), a trial court has the authority to order the reimbursement of court-appointed attorney fees only if “the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided … including any expenses and costs.” Here, the Court made no finding of the defendant’s ability to pay; thus, the attorney fees were not allowable. Read Opinion.
The Court’s holding on the attorney fees assessment is fairly straightforward. The Court’s holdings on the State’s punishment witness and gang testimony are more interesting. Be sure if you offer gang evidence that you prove both that the defendant is a member of the gang and that the gang does bad things.