Warney v. Monroe County, No. 08-0947 (2d Cir. 2009)

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08-0947-cv Warney v. Monroe County 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: June 1, 2009 Decided: November 13, 2009) Docket No. 08-0947 - - - - - - - - - - - - - - - - - - - - -x DOUGLAS WARNEY, Plaintiff-Appellee, - v.MONROE COUNTY, LARRY BERNSTEIN, in his individual capacity, WENDY EVANS LEHMAN, in her individual capacity and MICHAEL C. GREEN, in his individual and official capacities, Defendants-Appellants, CITY OF ROCHESTER, SANDRA ADAMS, in her individual capacity, EVELYN BEAUDRAULT, in her individual capacity, STEPHEN EDGETT, in his individual capacity, THOMAS JONES, in his individual capacity, ROBERT GARLAND, in his individual capacity, JOHN GROPP, in his individual capacity, JOHN DOE OFFICERS AND/OR DETECTIVES # 1-10, in their individual capacities and RICHARD ROE SUPERVISORS # 1-10, in their individual capacities, Defendants. - - - - - - - - - - - - - - - - - - - - -x 1 2 3 4 Before: JACOBS, Chief Judge, NEWMAN and POOLER, Circuit Judges. Appeal by prosecutors from denial of their motion for 5 absolute or qualified immunity by the United States District 6 Court for the Western District of New York (Larimer, J.) in 7 a suit alleging that the exculpatory result of post-trial 8 DNA testing, conducted by the district attorney s office 9 while defending habeas and other initiatives, was not timely 10 disclosed to plaintiff Douglas Warney, who was in jail for a 11 murder that the DNA testing ultimately showed he did not 12 commit. 13 with post-trial proceedings and was therefore integral to 14 the advocacy function, we hold that the prosecutors enjoy 15 absolute immunity under Imbler v. Pachtman, 424 U.S. 409, 16 430 31 (1976). Because the testing was undertaken in connection Reversed. 17 18 19 20 21 22 23 24 25 26 27 28 29 30 MICHAEL E. DAVIS, Second Deputy County Attorney, for DANIEL M. De LAUS, JR., Monroe County Attorney, Rochester, NY, for Defendants-Appellants. DEBORAH L. CORNWALL, (Peter J. Neufeld, Sarah Crowley, on the brief), Cochran Neufeld & Scheck, LLP, New York, NY, for Plaintiff-Appellee. Steven A. Bender and Anthony J. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 Servino, for Daniel M. Donovan, President of the District Attorneys Association of New York State, for amicus curiae District Attorneys Association of New York State, in support of DefendantsAppellants. DENNIS JACOBS, Chief Judge: Three prosecutors of Monroe County appeal from denial 14 of their motion for absolute or qualified immunity by the 15 United States District Court for the Western District of New 16 York (Larimer, J.) in a suit alleging that the exculpatory 17 result of post-trial DNA testing, conducted by the district 18 attorney s office while defending habeas and other 19 initiatives, was not timely disclosed to plaintiff, who was 20 in jail for a murder that the DNA testing ultimately showed 21 he did not commit. 22 connection with post-trial proceedings and was therefore 23 integral to the advocacy function, we hold that the 24 prosecutors enjoy absolute immunity under Imbler v. 25 Pachtman, 424 U.S. 409, 430 31 (1976). 26 Because the testing was undertaken in Plaintiff Douglas Warney was wrongfully convicted and 27 jailed for ten years. 28 government entities) for violating his constitutional He sues a number of individuals (and 3 1 rights. 2 liability and immunity of three Monroe County prosecutors 3 for failing to disclose exculpatory DNA test results 4 promptly. 5 This appeal considers only issues bearing upon the After Warney s conviction, during the pendency of his 6 federal habeas corpus petition and his appeal from a state- 7 court decision denying him access to DNA evidence, the 8 Monroe County District Attorney s office arranged the DNA 9 testing of crime scene evidence. The results showed that 10 all non-victim blood samples collected at the scene of the 11 crime were from one man, who was not Warney. 12 results, the prosecutors identified the man who actually 13 committed the murder, advised Warney s counsel, interviewed 14 the new suspect to confirm that Warney was not involved, and 15 then achieved Warney s exoneration. 16 constitutional rights were violated because at least 72 days 17 elapsed between the date the prosecutors learned of the DNA 18 test results and the date they informed Warney or his 19 counsel. 20 Using the DNA Warney alleges that his This appeal requires us to consider the scope of 21 absolute prosecutorial immunity in the post-conviction 22 context. 4 1 2 3 BACKGROUND We set out only the facts that bear upon the 4 disposition of this appeal. 5 appeal from the denial of a motion to dismiss, we accept as 6 true all well-pled factual allegations, and draw all 7 reasonable inferences in the plaintiff s favor. 8 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell 9 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 10 A. The Murder. Since this is an interlocutory See In January 1996, William Beason was 11 found dead in his ransacked apartment on Chili Avenue in 12 Rochester, New York by officers of the Rochester Police 13 Department ( RPD ). 14 bloodstained knife, a bloody towel, and a bloody tissue. 15 The RPD lifted several fingerprints from two pornographic 16 videotape boxes found in the bedroom, and one partial print 17 from the knife. 18 Beason s neck and chest, all of them consistent with the 19 bloody knife found in the bathroom, and defensive wounds on 20 Beason s left hand. 21 fingernails. 22 violent struggle, and that the perpetrator was cut and had In Beason s bathroom, they found a The autopsy showed nineteen stab wounds to Blood evidence was collected from his Thus it appeared that Beason died after a 5 1 gone into the bathroom to clean blood off himself with the 2 towel and the tissue. 3 After Beason s murder was reported in the press, 4 Douglas Warney called the RPD Crimestoppers hotline and 5 referenced the murder. 6 grade education, and full-blown AIDS. 7 is not clear what Warney said, but he alleges that he said 8 that he knew of Beason.1 An RPD officer went to Warney s 9 apartment to speak to him. The complaint alleges that the Warney had an IQ of 68, an eighth(Complaint ¶ 37.) It 10 RPD was aware that Warney had made numerous crank calls to 11 the police (for which he had received psychiatric 12 assistance), and this officer in particular had responded to 13 Warney s complaints about drug activity in his apartment 14 building. 15 concerned about his name being brought up in connection with 16 the murder of a William on Chili Avenue. 17 (Id. ¶ 39.) Warney told this officer that he was Two days later, RPD detectives picked up Warney at his 18 apartment and brought him to the police station. 19 him in a small office and interrogated him, using 1 They put Beason and Warney had a passing acquaintance. (Complaint ¶¶ 37 38.) On occasion, Beason had hired Warney to clean his house and shovel snow from his driveway. (Id.) 6 1 escalating coercive tactics including verbal abuse, and 2 physical and other threats, in order to force him to admit 3 that he committed the murder. 4 denials, Warney eventually yielded to [the] coercive 5 tactics and provided at least four wildly different versions 6 of events to the police. 7 (Id. ¶ 47.) After initial (Id. ¶¶ 50-51.)2 In an ensuing typewritten confession, the detectives 8 included numerous non-public facts about the murder known 9 only to the police and the real killer, facts which (it is 10 now known) Warney could not possibly have known. 11 52.)3 (Id. ¶ According to the complaint, there were 2 In the first version, Warney implicated his cousin. In the second, Warney added that he and his cousin went together to Beason s home. In the third, Warney and his cousin together stabbed Beason. In the fourth, reflected in the typewritten statement, his cousin was no longer present, and Warney confessed to murdering Beason alone. (Complaint ¶ 51.) 3 These facts included: (1) Beason was cooking barbeque chicken and mashed potatoes at the time he was killed; (2) Beason was wearing a red and white striped nightshirt; (3) Beason was stabbed more than fifteen times with a twelve-inch serrated knife; (4) Beason s throat was slit; (5) Beason s body was found on his bed and his eyes were open; (6) the assailant cut himself and bled in the apartment; (7) the assailant wiped his wound with tissue paper, which he discarded in the toilet; (8) the assailant put intensive care lotion on his wound; and (9) the back door and basement door were locked and the front door of the house locks automatically. (Complaint ¶ 53.) The complaint alleges that the detectives deliberately failed to disclose 7 1 inconsistencies in Warney s statement that rendered it 2 wholly implausible.4 3 Warney signed the confession and initialed minor 4 changes less than four hours after he had been picked up.5 5 According to the complaint, after Warney s confession the 6 police performed no further investigation other than trying 7 to determine whether Warney s cousin could have been an 8 accomplice. 9 a pornographic videotape box was not run through the Notably, the latent fingerprint collected from to the prosecutor and to defense counsel the material exculpatory fact that they fed the non-public details of the crime to Mr. Warney. (Id. ¶ 67.) 4 The inconsistencies are that: (1) Warney s confession says that he killed Beason downstairs, and dragged him up to the bedroom; (2) Warney s statement said he drove his brother s Chevrolet to Beason s house, even though Warney s brother does not own a car; and (3) Warney s hands had no cuts or bruises, even though his confession says he got cut and bled at the scene. (Complaint ¶ 62.) 5 At 5:30 p.m., the detectives took Warney to the Public Safety Building, and placed him in a secured interview room to elicit further false confessions and corroborate the [initial] falsified confession. (Complaint ¶ 57.) In this second confession, Warney was said to have volunteered another detail mentioned in the crime scene reports -that pornographic video tapes featuring a white male and Hispanic male were found in Beason s bedroom--and that he and Beason had watched the tape together before the murder. (Id. ¶ 58.) 8 1 2 statewide database.6 B. The Trial. (Id. ¶ 63.) Certain blood evidence at the scene was 3 found to exclude both Warney and Beason; so Warney was 4 charged both as a principal and an accomplice. 5 however, the prosecution s only theory was that Warney 6 committed the murder alone, and the prosecution s case 7 rested almost exclusively on Warney s confession. 8 (Complaint ¶¶ 79-80.) 9 At trial, At trial, a chemist testified that the blood on the 10 murder weapon was consistent with the victim s Type O, but 11 inconsistent with Warney s Type A; and the bloodstains on 12 the towel and tissue belonged neither to Beason nor Warney. 13 (It fit neither of their enzyme types. ) (Complaint ¶ 74.) 14 Of three latent prints from the pornographic videotape 15 boxes, two belonged to Beason, and the third was 16 unidentified, meaning it belonged to neither Beason nor 17 Warney.7 18 print from the murder weapon, and found only three points A second fingerprint specialist examined a partial 6 If the fingerprint had been run, as it later was, it would have matched a man named Eldred Johnson. Johnson s fingerprints were in the database as of January 1996 (due to crimes he committed in 1994). (Complaint ¶¶ 63, 77.) 7 The unidentified print later matched Eldred Johnson. See supra note 6. 9 1 of comparison, but concluded that Warney was a possible 2 source of the print. 3 Beason.) 4 5 6 (He also specifically excluded (Id. ¶ 78.) Warney testified to his innocence and about the threats from the police that made him confess. On February 12, 1997, the jury convicted Warney of two 7 counts of second-degree murder. 8 sentenced to 25 years to life. 9 appeal, People v. Warney, 299 A.D.2d 956, 750 N.Y.S.2d 731 10 (4th Dep t 2002), and became final when the New York Court 11 of Appeals denied leave to appeal on March 4, 2003, 99 12 N.Y.2d 633, 790 N.E.2d 289 (2003). 13 C. On February 27, he was The judgment was affirmed on Post-Conviction Proceedings. In May 2004, Warney 14 filed a federal habeas corpus petition under 28 U.S.C. § 15 2254 in the United States District Court for the Western 16 District of New York, Warney v. McGinnis, No. 04-cv-6202(L) 17 (filed May 4, 2004), a filing of which we take judicial 18 notice. 19 biological evidence from the murder scene in order to 20 conduct DNA testing that he believed would exonerate him. 21 Warney s attorney requested access to the evidence so as to 22 perform DNA testing at his own expense, but the Monroe Warney thereafter began seeking access to 10 1 County District Attorney s office refused consent. 2 (Complaint ¶ 91.) 3 In October 2004, Warney moved under New York State s 4 post-conviction statute, N.Y. Crim. Proc. Law 440.30(1-a) 5 (McKinney 2004) (the 440 motion ), seeking access to the 6 blood evidence found at the crime scene. 7 sought access to, inter alia, blood found on the murder 8 weapon (which had been tested already), and blood found on 9 the victim s fingernails (which had not been tested before). 10 The 440 motion The Monroe County District Attorney s Office, 11 represented by District Attorney Michael C. Green and 12 Assistant District Attorney Wendy Evans Lehman, opposed the 13 440 motion, both in writing and at a hearing on November 15, 14 2004 before New York State Supreme Court Justice Francis A. 15 Affronti. 16 Attorney s office argued that Warney had not established due 17 diligence, and that the reasons underlying his request for 18 access to the blood evidence were speculative. 19 (Complaint ¶ 93.) At the hearing, the District (Id.) The 440 motion was denied in an order issued December 20 15, 2004, on the grounds that DNA testing would not provide 21 evidence which is significantly different from that 22 submitted to the jury which convicted [Warney], and that 11 1 the request was based on conjecture . . . too speculative 2 and improbable. 3 Appellate Division. 4 (Id. ¶ 94.) Warney appealed to the D. DNA Testing and Exoneration. In February 2005, 5 while the Monroe County District Attorney s office was 6 opposing Warney s appeal from the denial of his 440 motion, 7 and while Warney s federal habeas petition was still 8 pending, Second District Attorney Larry Bernstein submitted 9 for DNA testing the blood evidence that was the subject of 10 Warney s 440 motion -a total of seven samples, including the 11 blood found under the victim s fingernails and on the murder 12 weapon. 13 District Attorney, and without informing the state or 14 federal court, Warney, or Warney s attorney.8 15 Bernstein did so with the authorization of the (Id. ¶ 95.) Warney alleges that, [u]pon information and belief, 16 defendants Green, Bernstein, Lehman, and others in the DA s 17 office received a verbal report of the DNA test results from 18 the Monroe County Public Safety Laboratory as early as 19 2005. 20 say when in 2005 the alleged verbal report was received, or (Id. ¶ 97 (emphasis added)). 8 The complaint does not At oral argument, Warney s counsel maintained that the DNA testing was destructive, such that once tested, the blood samples could not be retested. 12 1 what it contained other than that it was exculpatory. 2 (Id.) 3 On February 17, 2006, approximately one year after 4 submitting the evidence to be tested, the District 5 Attorney s office received a written laboratory report 6 showing that each of the seven blood samples submitted 7 matched a single profile of a man who was neither Beason nor 8 Warney. 9 disclosed to Warney or his lawyer. 10 The results of the testing were not immediately Two weeks later, on March 2, 2006, the prosecutors 11 learned more: a search of the FBI s Combined DNA Indexing 12 System (CODIS) database matched the profile to a man named 13 Eldred Johnson, who had been convicted of murder, as well as 14 several slashings and burglaries, and who was then serving a 15 life sentence in Utica, New York. 16 The district attorneys took the additional step of 17 ordering examination of the unidentified fingerprint found 18 on the pornographic videotape box. 19 evidence technician from the RPD determined that the 20 fingerprint also matched Eldred Johnson. On March 24, 2006, an 21 The DNA testing results and the fingerprint match were 22 disclosed to Warney for the first time on May 1, 2006, when 13 1 Monroe County attorneys informed Warney s counsel that 2 Warney had been excluded as the source of the blood 3 evidence, though they did not advise that all the previously 4 unidentified blood was from the same man. 5 2006 to May 1, 2006 is a period of 72 days. From February 17, 6 On May 11, 2006, the District Attorney s office 7 interviewed Eldred Johnson, who promptly confessed to the 8 murder of Beason. 9 did not know Douglas Warney. Johnson said that he had acted alone, and The next day, the District 10 Attorney s office informed Warney s counsel of Johnson s 11 confession. 12 16, 2006), on application of the Monroe County District 13 Attorney s office, Warney s murder conviction was vacated. Four business days after the confession (May 14 In vacating Warney s conviction, Justice Van Strydonck 15 pointed out that the inconsistencies in the blood evidence, 16 (i.e., the presence of a third source of blood) was known at 17 the time of trial: the newly found evidence is not the 18 fact that a third person s blood was found at the scene . . 19 . [or] that Mr. Warney s confession was inconsistent in many 20 important ways with the facts developed by the police and 21 the prosecutor s office. 22 by the defense and argued to the jury. Those inconsistencies were known 14 Rather the newly 1 discovered evidence is the confession of Mr. Eldred 2 Johnson. 3 4 5 Warney was released from prison, and Eldred Johnson later pleaded guilty to the Beason murder. E. This Lawsuit. Warney filed suit under 42 U.S.C. 6 § 1983 against numerous defendants, including the City of 7 Rochester; Monroe County; various police officers and 8 detectives; and three prosecutors in the Monroe County 9 District Attorney s office: Michael Green,9 Larry Bernstein, 10 11 and Wendy Evans Lehman. The complaint initially pleaded three claims relating 12 to the prosecutors: (1) a due process claim for bad faith 13 denial of post-conviction access to biological evidence and 14 DNA testing (Count VI, which has since been withdrawn as to 15 the individual prosecutors); (2) a due process claim for 16 failing to promptly disclose material exculpatory evidence 17 (Count VII, which is at issue on this appeal); and (3) 18 a claim against Monroe County (Count IX, under Monell v. 19 Department of Social Services, 436 U.S. 658 (1978)), for 20 having a custom or policy of withholding biological evidence 9 The complaint named Green in both his individual capacity and his official capacity as District Attorney. 15 1 in bad faith, and failing to promptly disclose exculpatory 2 information. 3 Defendants Green, Bernstein, and Evans Lehman, and 4 Monroe County moved to dismiss all counts against them on 5 grounds of absolute prosecutorial immunity, qualified 6 immunity, and failure to state a claim under Monell.10 7 Decision and Order dated February 11, 2008, the district 8 court denied the defendants motion to dismiss in all 9 respects.11 By In summary, the district court concluded that 10 the prosecutors were acting in an investigative capacity 11 when they submitted the DNA evidence for testing and when 12 they later withheld the results, and they were therefore not 13 entitled to absolute immunity under Imbler, 424 U.S. at 14 430 31. 15 were not entitled to qualified immunity because reasonable 16 prosecutors should have known that failing to disclose 17 compelling exculpatory information for a period of at least The court further concluded that the prosecutors 10 As to the Monell claim, Monroe County urged that the claim related only to acts undertaken by the District Attorney in his prosecutorial capacity, and in that capacity a District Attorney acts as an agent of the State of New York, not as an agent of a particular county. 11 However, the court did dismiss all claims against Green in his official capacity because it found such claims were subsumed by the Monell claim against Monroe County. 16 1 72 days violated a clearly established, substantive due 2 process right. 3 The prosecutors and Monroe County appeal. 4 5 6 DISCUSSION When a district court denies immunity on a Rule 7 12(b)(6) motion to dismiss, we review the district court s 8 denial de novo, accepting as true the material facts alleged 9 in the complaint and drawing all reasonable inferences in 10 plaintiffs favor. 11 Dist., 239 F.3d 246, 250 (2d Cir. 2001). 12 Johnson v. Newburgh Enlarged School We have jurisdiction to review a denial of qualified 13 immunity under the collateral order doctrine if the denial 14 turns on an issue of law. 15 (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). 16 17 Iqbal, 129 S. Ct. at 1946 I The Supreme Court first acknowledged the absolute 18 immunity of prosecutors to § 1983 suits in Imbler v. 19 Pachtman, 424 U.S. 409 (1976). 20 law tradition of prosecutorial immunity, as well as strong 21 policy considerations that supported extending immunity to 22 the § 1983 context: A prosecutor is duty bound to exercise 17 The Court relied on a common 1 his best judgment both in deciding which suits to bring and 2 in conducting them in court. 3 prosecutor s office would suffer if he were constrained in 4 making every decision by the consequences in terms of his 5 own potential liability in a suit for damages. 6 U.S. at 424 25. 7 The public trust of the Imbler, 424 Imbler defined the scope of prosecutorial immunity not 8 by the identity of the actor, but by reference to the 9 function performed. Id. at 430. Those acts that are 10 intimately associated with the judicial phase of the 11 criminal process would be shielded by absolute immunity, 12 but not those aspects of the prosecutor s responsibility 13 that cast him in the role of an administrator or 14 investigative officer rather than that of advocate. 15 430-31. 16 Id. at Thus, to establish immunity, the ultimate question is 17 whether the prosecutors have carried their burden of 18 establishing that they were functioning as advocates when 19 they engaged in the challenged conduct. 20 81 F.3d 1204, 1209 (2d Cir. 1996). 21 administrative duties and those investigatory functions that 22 do not relate to an advocate s preparation for the 18 Doe v. Phillips, A prosecutor s 1 initiation of a prosecution or for judicial proceedings are 2 not entitled to absolute immunity. 3 509 U.S. 259, 273 (1993); see also Parkinson v. Cozzolino, 4 238 F.3d 145, 150 (2d Cir. 2001) ( The cases thus draw a 5 line between the investigative and administrative functions 6 of prosecutors, which are not protected by absolute 7 immunity, and the advocacy functions of prosecutors, which 8 are so protected. ). 9 Buckley v. Fitzsimmons, Drawing this line between advocacy and 10 investigative functions is vexed, perhaps no more so than 11 in the post-conviction context.12 12 becomes final, there is no longer a pending adversarial 13 criminal proceeding; the judicial phase is technically 14 finished. 15 will necessarily remain involved in criminal cases: opposing 16 civil habeas petitions (or other forms of collateral 17 relief); amending restitution orders; pursuing parole 18 violations; or resolving disputes over a prisoner s 19 projected release date. For once a conviction Yet, by the nature of their office, prosecutors These functions may be somewhat 12 Imbler specifically avoided the post-conviction context. See Imbler, 424 U.S. at 431 ( We hold only that in initiating a prosecution and in presenting the State s case, the prosecutor is immune from a civil suit for damages under § 1983. (emphases added)). 19 1 administrative, and may not always relate to in-court 2 advocacy, yet often they are integral to an ongoing 3 judicial phase of a prosecution. 4 Confronted with questions about the scope of absolute 5 prosecutorial immunity post-conviction, federal appellate 6 courts have stressed different aspects of the analysis, and 7 come to apparently conflicting results. 8 Partee, 978 F.2d 362, 366 (7th Cir. 1992) (no absolute 9 immunity where prosecutors were not personally prosecuting 10 the appeal in post-conviction proceedings), with Carter v. 11 Burch, 34 F.3d 257, 263 (4th Cir. 1994) (absolute immunity 12 where prosecutor was handling the post-conviction motions 13 and the initial direct appeal . . . [and thus] still 14 functioning as an advocate for the State ). 15 the Third and Sixth Circuits have suggested that absolute 16 immunity should extend to post-conviction conduct so long as 17 the prosecutor can show that an advocacy function was being 18 performed. 19 137 (3d Cir. 2006) ( After a conviction is obtained, the 20 challenged action must be shown by the prosecutor to be part 21 of the prosecutor s continuing personal involvement as the 22 state s advocate in adversarial post-conviction proceedings Compare Houston v. Most recently, See Yarris v. County of Delaware, 465 F.3d 129, 20 1 to be encompassed within that prosecutor s absolute immunity 2 from suit. ); Spurlock v. Thompson, 330 F.3d 791, 799 (6th 3 Cir. 2003) ( [a]bsolute immunity applies to the adversarial 4 acts of prosecutors during post-conviction proceedings . . . 5 where the prosecutor is personally involved . . . and 6 continues his role as an advocate, but where the role as 7 advocate has not yet begun . . . or where it has concluded, 8 absolute immunity does not apply. ). 9 Our Court has not addressed the scope of immunity 10 enjoyed by prosecutors in collateral proceedings; but we 11 have held that absolute immunity extends to actions taken 12 while working on direct appeals. 13 151 52. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Parkinson, 238 F.3d at As we wrote in Parkinson: We now join these courts in holding that absolute immunity covers prosecutors actions after the date of conviction while a direct appeal is pending. We express no opinion as to when such immunity ends; the prosecutors actions in this case occurred while [the defendant s] direct appeal was pending, and we have little difficulty extending absolute immunity that far. [FN 5] [FN 5] Specifically, because the facts of this case do not raise the issue, we do not decide whether absolute immunity extends to collateral proceedings, such as habeas petitions. 238 F.3d at 152 & n.5. 21 1 2 II On the facts of this case, we must now decide whether, 3 and how, absolute immunity extends to prosecutors working on 4 post-conviction collateral proceedings. 5 principled reason to withhold absolute immunity for work 6 performed in defending a conviction from collateral attack. 7 We see no As we noted in Parkinson, there is language from some 8 Supreme Court decisions to the effect that absolute 9 immunity appl[ies] to acts undertaken by a prosecutor in 10 preparing for the initiation of judicial proceedings or for 11 trial. 12 273). 13 delineate the endpoint of immunity. Rather, it simply 14 underscores the fact that absolute immunity does not apply 15 to the investigatory duties of a prosecutor, that is, it 16 serves to establish the starting point of such immunity. 17 Id. (emphases in original). 18 238 F.3d at 151 (quoting Buckley, 509 U.S. at But [s]uch language . . . does not serve to Although a collateral attack is technically a separate, 19 civil proceeding, a prosecutor defending a post-conviction 20 petition remains the state s advocate in an adversarial 21 proceeding that is an integral part of the criminal justice 22 1 system.13 2 absolute immunity for work done at trial or on appeal are 3 just as relevant in the context of a collateral proceeding. 4 A post-conviction petition often presents the same kinds of 5 legal issues as the underlying criminal case, requires the 6 same kinds of legal judgments, and calls upon the same kinds 7 of advocacy skills and measures. 8 who conducted the trial will oppose the post-conviction 9 challenge. 10 The considerations that militate in favor of Often the same prosecutor Several courts have already held, or suggested, that 11 absolute immunity shields work performed by prosecutors 12 opposing habeas petitions. 13 799 ( Absolute immunity applies to the adversarial acts of 14 prosecutors during post-conviction proceedings, including 15 direct appeals, habeas corpus proceedings, and parole 16 proceedings, where the prosecutor is personally involved in 17 the subsequent proceedings and continues his role as an 18 advocate. ); Summers v. Sjogren, 667 F. Supp. 1432, 1434 (D. 19 Utah 1987) (a prosecutor who allegedly filed false documents See, e.g., Spurlock, 330 F.3d at 13 See U.S. Const. art. II, § 9, cl. 2 ( The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. ). 23 1 in opposition to a habeas petition does not lose immunity 2 merely because she was acting in a post-conviction 3 setting ). 4 immunity shields work performed during a post-conviction 5 collateral attack, at least insofar as the challenged 6 actions are part of the prosecutor s role as an advocate for 7 the state. We join these courts in holding that absolute 8 III 9 Having established that absolute prosecutorial immunity 10 may extend to advocacy work performed in the post-conviction 11 context, we must determine whether such immunity is 12 warranted in this case. 13 The answer depends in part on whether one looks at the 14 prosecutors discrete actions, or at their role and function 15 in an ongoing proceeding. 16 testing, the prosecutors conduct might be classified as 17 investigative; if one focuses on the act of delaying 18 disclosure, the prosecutors conduct might be classified as 19 administrative, or possibly investigative; if one focuses on 20 the opposition to Warney s 440 motion and habeas petition, 21 the prosecutors conduct might be classified as pure 22 advocacy. If one focuses on the DNA 24 1 The district court, which focused on the testing and 2 the delay in disclosure, declined to extend absolute 3 immunity because it considered the prosecutors actions to 4 be investigatory . . . no different than [] law enforcement 5 officials acts in obtaining and allegedly suppressing 6 favorable evidence. 7 Warney does not complain that the prosecutors ordered 8 the testing; after all, that testing is what led to his 9 release. Nor is Warney complaining (here) about the denial 10 of access to test the DNA for himself.14 11 complaining of non-disclosure of the test results-- 12 disclosure was made. 13 (understandably) on the specific act that caused his harm: 14 the failure to disclose the DNA results promptly. Nor is he Warney s narrow focus is 15 For the following reasons, we conclude that it is 16 unhelpful to ascertain the prosecutors functional role by 17 isolating each specific act done or not done; rather, a 18 prosecutor s function depends chiefly on whether there is 14 Warney voluntarily withdrew his claim relating to bad-faith denial of access to evidence. Its validity would, in any event, be called into question by the Supreme Court s recent decision in District Attorney s Office for the Third Judicial District v. Osborne, 129 S. Ct. 2308, 2322 (2009) (finding no substantive due process right to DNA evidence post-conviction). 25 1 pending or in preparation a court proceeding in which the 2 prosecutor acts as an advocate. 3 Unless the DNA testing is considered with reference to 4 context, it is impossible to classify functionally. 5 testing inculpated Warney, it would be a potent tool of the 6 advocacy; if it exculpated Warney, it might be deemed 7 administrative, in the sense that it would entail 8 disclosure; if it inculpated someone else, it would be 9 investigative, at least to the extent that it might identify If the 10 the real killer. 11 disclosure, and even the delay in making disclosure, as well 12 as the identification of the real killer -were integral to 13 and subsumed in the advocacy functions being performed in 14 connection with Warney s post-conviction initiatives. 15 decisions made by the prosecutors in this case--whether to 16 test for potentially inculpatory (or exculpatory) 17 information, how and when to disclose or use that 18 information, and whether to seek to vacate Warney s 19 conviction--were exercises of legal judgment made in the 20 judicial phase of proceedings integral to the criminal 21 justice process. 22 But the steps taken here--testing, The The DNA testing obviously would have bearing on the 26 1 advocacy work of deciding whether to oppose Warney s 2 initiatives. 3 before filing an opposition, to ensure that the petition 4 should in fact be opposed. 5 presenting to the court a pleading . . . an attorney . . . 6 certifies that to the best of the person s knowledge . . . 7 the factual contentions have evidentiary support. ). 8 proper and useful focus for ascertaining the function being 9 served by a prosecutor s act is therefore on the pendency of A prosecutor has an affirmative obligation, See Fed. R. Civ. P. 11(b) ( By The 10 court proceedings that engage a prosecutor as an advocate 11 for the state. 12 The Supreme Court recently taught us that a prosecutor 13 enjoys absolute immunity even when doing an administrative 14 act if the act is done in the performance of an advocacy 15 function. 16 In Van de Kamp, the plaintiff had won habeas relief because 17 the government failed to disclose at trial, as required by 18 Giglio v. United States, 405 U.S. 150 (1972), that a 19 jailhouse informant had previously received reduced 20 sentences for providing favorable testimony. 21 suit, the plaintiff alleged that the Los Angeles County 22 District Attorney (and other prosecutors) failed to Van de Kamp v. Goldstein, 129 S. Ct. 855 (2009). 27 In a § 1983 1 establish information-sharing systems concerning jailhouse 2 informants, and failed to train prosecutors on how to share 3 such information. 4 absolute immunity, on the theory that the alleged failures 5 were more administrative than prosecutorial. 6 See Goldstein v. Long Beach, 481 F.3d 1170, 1171 72 (9th 7 Cir. 2007). 8 administrative tasks at issue (establishing information- 9 sharing systems and training attorneys on how to share The Ninth Circuit denied the prosecutors In reversing, the Supreme Court held that the 10 information) were intimately associated with the judicial 11 phase of the criminal process. 12 864 (quoting Imbler, 424 U.S. at 430). 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Van de Kamp, 129 S. Ct. at The Court explained: Here, unlike with other claims related to administrative decisions, an individual prosecutor s error in the plaintiff s specific criminal trial constitutes an essential element of the plaintiff s claim. The administrative obligations at issue here are thus unlike administrative duties concerning, for example, workplace hiring, payroll administration, the maintenance of physical facilities, and the like. Moreover, the types of activities on which Goldstein s claims focus necessarily require legal knowledge and the exercise of related discretion, e.g., in determining what information should be included in the training or the supervision or the information-system management. And in that sense also Goldstein s claims are unlike claims of, say, unlawful discrimination in hiring 28 1 2 3 4 5 Id. at 862. 6 integral to an advocacy function, we conclude that the 7 prosecutors actions here--which could be seen as 8 administrative or investigative--were also integral to the 9 overarching advocacy function of dealing with post-trial employees. Given these features of the case before us, we believe absolute immunity must follow. Just as the administrative act in Goldstein was 10 initiatives challenging an underlying criminal conviction: 11 they require[d] legal knowledge and the exercise of related 12 discretion. 13 Id. If the conduct challenged by Warney had occurred during 14 Warney s trial, that is, if the prosecutors had tested all 15 the evidence, and then sat on the exculpatory results for at 16 least 72 days, they may well have violated Brady v. 17 Maryland, 373 U.S. 83 (1963); but they would be absolutely 18 immune from personal liability. 19 Shankland, 800 F.2d 77, 80 (6th Cir. 1986) (a prosecutor s 20 non-disclosure of exculpatory information [is] certainly 21 entitled to absolute immunity ). 22 that the disclosure of evidence to opposing counsel is an 23 advocacy function. 24 See, e.g., Jones v. The reason that is so is The disclosure decision in this case is advocacy 29 1 notwithstanding that the evidence would likely terminate the 2 ongoing post-conviction proceedings in favor of the 3 petitioner. 4 seeking exoneration and confessing error to correct an 5 erroneous conviction. 6 continuing ethical obligation to disclose exculpatory 7 information discovered post-conviction. 15 The advocacy function of a prosecutor includes Thus prosecutors are under a Any narrower 15 Rule 3.8 of the American Bar Association Model Rules of Professional Conduct reads: (g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor s jurisdiction, (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit. (h) When a prosecutor knows of clear and convincing evidence establishing that a 30 1 2 conception of a prosecutor s role would be truly alarming. The prosecutors are therefore entitled to absolute 3 immunity in this lawsuit. 4 need not, and do not, decide whether absolute immunity 5 extends to prosecutorial conduct regarding DNA evidence, 6 occurring after a prisoner s appeals and collateral attacks 7 have been exhausted. 8 immunity in this case, we do not address the prosecutors 9 alternative argument that they are entitled to qualified 10 On the facts of this case, we Moreover, because we extend absolute immunity. 11 12 IV Affording absolute immunity in this context, with the 13 resulting dismissal of Warney s claim against the 14 prosecutors, does not deprecate the duty of prosecutors to 15 prevent unjust imprisonment. 16 afforded in part because we conclude that the duty is a part 17 of the prosecutor s advocacy function. 18 no incentive for concealment. 19 necessary enforcement mechanism for ensuring that Indeed, absolute immunity is This outcome affords A civil law suit is not a defendant in the prosecutor s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction. 31 1 prosecutors disclose exculpatory information promptly. 2 Prosecutors remain ethically bound to disclose exculpatory 3 information, and, in extreme cases of intentional 4 suppression, prosecutors may be subject to criminal 5 liability. 6 that the immunity of prosecutors from liability in suits 7 under § 1983 does not leave the public powerless to deter 8 misconduct or to punish that which occurs. 9 never suggested that the policy considerations which compel 10 civil immunity for certain governmental officials also place 11 them beyond the reach of the criminal law. ). 12 See Imbler, 424 U.S. at 428 29 ( We emphasize This Court has Moreover, the availability of absolute immunity in this 13 context will likely encourage prosecutors in the future to 14 seek exculpatory information post-trial. 15 of prosecutors is grounded in the fear that the public 16 trust of the prosecutor s office would suffer if [the 17 prosecutor] were constrained in making every decision by the 18 consequences in terms of his own potential liability in a 19 suit for damages. 20 Kalina v. Fletcher, 522 U.S. 118, 125 (1997) ( [I]t is the 21 interest in protecting the proper functioning of the office, 22 rather than the interest in protecting its occupant, that is Absolute immunity Imbler, 424 U.S. at 424-25; see also 32 1 of primary importance. ). 2 leave the genuinely wronged defendant without civil redress 3 against a prosecutor whose malicious or dishonest action 4 deprives him of liberty. 5 a prosecutor s immunity would disserve the broader public 6 interest. It would prevent the vigorous and fearless 7 performance of the prosecutor s duty that is essential to 8 the proper functioning of the criminal justice system. 9 Imbler, 424 U.S. at 427-28 . To be sure, this immunity does But the alternative of qualifying Prosecutors facing tough 10 choices as to whether or not to seek exculpatory information 11 post-conviction should not have to fear personal liability 12 in the event that issues are raised later as to the 13 evaluation and disclosure of what is learned during the 14 pendency of post-conviction proceedings. 15 be an incentive to avoid exculpatory inquiries. 16 17 Such a peril would V Finally, Monroe County argues that Warney s claim 18 against it should have been dismissed because the claim 19 relates solely to actions undertaken by the Monroe County 20 prosecutors in their prosecutorial capacity, and 21 prosecutors acting in that capacity are agents of the State 22 of New York, not agents of the particular county. 33 See, 1 e.g., Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988). 2 Alternatively, Monroe County argues that Warney has failed 3 to identify an underlying constitutional deprivation to 4 support a claim under Monell, 436 U.S. 658. 5 Unlike the order denying immunity, the order denying 6 Monroe County s motion to dismiss is not immediately 7 appealable pursuant to the collateral order doctrine. 8 Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) 9 (under the collateral order doctrine, an appellate court may See 10 not exercise jurisdiction where an order does not 11 conclusively determine the disputed question ). 12 County asks us to exercise pendent appellate jurisdiction; 13 but in this Circuit we exercise pendent appellate 14 jurisdiction only over an independent but related question 15 that is inextricably intertwined with the [appealable 16 issue] or is necessary to ensure meaningful review of that 17 issue. 18 (2d Cir. 1995) (quoting Swint v. Chambers County Comm n, 514 19 U.S. 35, 51 (1995)). 20 the extent to which prosecutors in New York are agents of 21 the state (as opposed to a county) are not inextricably 22 intertwined with the question of absolute immunity. Monroe Kaluczky v. City of White Plains, 57 F.3d 202, 207 The elements of a Monell claim, and 34 We 1 therefore decline to exercise pendent appellate jurisdiction 2 over these issues at this time. 3 4 CONCLUSION 5 For the foregoing reasons, the order of the district 6 court insofar as it denied absolute immunity to the three 7 Monroe County prosecutors is reversed, and the case is 8 remanded for further proceedings consistent with this 9 opinion. 35

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