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 Judge Rejects Blanket Immunity for Grand Jury Testimony

Mark Hamblett
New York Law Journal

There is no categorical bar to the use of grand jury testimony as evidence against defendants in malicious prosecution suits brought pursuant to 17 U.S.C. 1983, a federal judge has ruled.

Dealing with an application to unseal grand jury minutes by a man who claims he was wrongly charged with a shooting because police detectives improperly influenced lineup and photo identifications by the key witness, Southern District Judge Paul Oetken, made that ruling in an Oct. 11 decision.

Oetken based his decision in Frederick v. New York City, 11 Civ. 469 (JPO), on the policy reasons for affording grand jury witnesses immunity from suit based on their testimony, as he rejected a claim by Queens prosecutors that this year's U.S. Supreme Court ruling in Rehberg v. Paulk, 132 S.Ct. 1497, demands a total bar on the use of such testimony.

Kelby Frederick spent more than one year in prison before Queens prosecutors dropped the charges against him once a witness revealed he had been influenced by detectives investigating the Oct. 9, 2009, shooting of Anthony Clarke, 21.

Clarke's brother, 15-year-old A.C. Clarke, was the critical witness. He watched through a screen door as two men drove by the house in a dark-colored car and paused so the passenger could fire several shots at Anthony. One shot struck Anthony in the left thigh.

At the hospital, A.C. told detectives he saw the driver of the vehicle lean back so the passenger had a clear shot at his brother.

Detective Mark Lobel showed A.C. a photo array, and, under what the judge said were "circumstances that the parties hotly dispute," A.C. identified Frederick as the driver. Lobel later testified that he included Frederick in the lineup because he had received an unreported anonymous phone call.

Two weeks later, A.C. identified Frederick in a lineup. Frederick was arrested and A.C. later appeared before the grand jury that ultimately indicted Frederick for second-degree attempted murder.

But in a 2010 interview with a private investigator working for Frederick's attorney, A.C. said, "I didn't really pay attention to the driver" and answered "yes" when asked if he had identified the shooter and not the driver.

Three days after defense counsel revealed these statements to the prosecution, the district attorney's office dismissed the charges in the interests of justice, sealed the case and had Frederick released from jail.

The defense investigator returned again to A.C. Clarke on Dec. 10, 2009, and he gave statements suggesting that Lobel and Detective Suzanne McDermott influenced his identification.

He said of the photo array, "I told police 'I think #4 is the person but I am not sure.' The police then told me that #4 was the person they suspected was involved. I then viewed the photos again and because the police suspected #4 that caused me to identify #4."

In his bid to have Oetken order the grand jury records unsealed for Frederick's §1983 case, attorney Fred Lichtmacher said the subsequent selection of his client at the lineup was influenced by the photo array identification.

Assistant Corporation Counsel Susan Scharfstein argued for the city and Detectives Lobel and McDermott that Rehberg barred the use of grand jury witness testimony in a malicious prosecution suit brought under §1983.

In his 25-page opinion, Oetken said Rehberg was a unanimous decision holding that grand jury witnesses enjoy absolute immunity from §1983 liability based on their testimony.

"To preempt exceptions that could swallow its rule, the Court noted that this grant of immunity 'may not be circumvented by claiming that a grand jury witness conspired to present false testimony, or by using evidence of a witness' testimony to support any other §1983 claim concerning the initiation or maintenance of a prosecution,'" Oetken wrote.

The question, he said, is "whether Rehberg's reference to 'any other claim' refers to any claim at all—or, as Plaintiff urges, to "any claim against the witness who testified."

Oetken decided that Rehberg "prohibits only the use of a witness's own grand jury testimony against that witness if he or she subsequently becomes a §1983 defendant."

He said Rehberg relied on the precedent of Briscoe v. LaHue, 460 U.S. 325 (1983).

Both cases, the judge said, "presuppose that immunity inheres in the act of testifying" but "neither opinion indicates any concern with third parties against whom such evidence is admitted; rather, both attend exclusively to the testifying witness and the incentives that may lead him or her to self-censor."

Oetken added, "It makes sense to fear self-censorship while deciding whether to let plaintiffs sue witness. But that sense becomes nonsense when the question is whether witnesses might self-censor out of fear that their testimony may be used against another person."

He said it was obvious that grand jury witnesses expect their testimony will be used against another person.

"This is even more obviously the case when we turn to the decidedly unlikely spectre of self-censorship resulting from fear that grand jury statements may ultimately be used against other people in a civil suit arising years later from misconduct in the original criminal case," he said.

Oetken concluded that "a bar on the use of such testimony against other people in a subset of §1983 cases is hardly necessary to secure the policy goals that underlie Rehberg's rule of grand jury witness immunity."

Applying that holding to the facts of the instant case, Oetke said Frederick "states a compelling interest in avoiding a possible injustice" and that his "need for disclosure trumps admittedly weighty concerns of secrecy and comity."

He said he would fashion a "narrowly structured disclosure" following in camera review of the grand jury record.





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