I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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The Fifth Circuit holds that Dunn Lampton found the limits of prosecutorial immunity

When a prosecutor is acting as a prosecutor– picking cases to indict, say– his or her conduct is virtually completely immune from any lawsuit, no matter how flimsy the prosecution, no matter how malicious or evil the prosecutor’s intention (think of the word “virtually” there as the thinnest of lawyer weasel-words– I used it because I really couldn’t bear saying “completely immune” even though I think that might be the case).

Think of Ed Peters, “indicting on a dare,” Keith Shelton and James Jennings.  When I heard about the civil rights action Jennings had filed, I thought (no matter how wrong what Peters had done) Jennings was going to have a long row to hoe.

But Dunn Lampton, former US Attorney for the Southern District of Mississippi, has found a way to highlight the border between a prosecutor-as-prosecutor and prosecutor-as-persecutor.  In a case I posted about earlier, Oliver Diaz sued Lampton for the improper release of his tax returns, which became the basis of a Judicial Performance proceeding (later dismissed). You might want to look at my prior post for more details.

The Fifth Circuit has just affirmed Judge Jordan’s refusal to dismiss Lampton for prosecutorial immunity.  The opinion begins:

Between 2003 and 2006, Dunnica Lampton, the U.S. Attorney for theSouthern District of Mississippi, prosecuted Oliver Diaz, a Mississippi SupremeCourt justice, and Jennifer Diaz, his wife, for fraud, bribery, and tax evasion.  Oliver Diaz was acquitted, but Jennifer Diaz pleaded guilty to tax evasion.  Lampton then filed a complaint with the Mississippi Commission on JudicialPerformance (the “Commission”) about Oliver Diaz’s conduct. He included copies of the Diazes’ federal tax records obtained during the criminal investigation.  The Commission dismissed the complaint in December 2008.  The Diazes sued Lampton in federal court, alleging a violation of 42 U.S.C.§ 1983 based on deprivation of rights under 18 U.S.C. § 1905 and 26 U.S.C.§§ 6103 and 7213. Jennifer Lampton [sic} also later raised a claim under 26 U.S.C. § 7431. Those statutes prohibit government officials from releasing private taxrecords obtained in the course of their duties. The Diazes’ suit also included anumber of state law claims. Lampton filed a Federal Rule of Civil Procedure12(b)(6) motion to dismiss the § 1983 claim, arguing that absolute prosecutorialimmunity shields his decision to give the tax records to the Commission. The district court denied the motion, and Lampton appealed.

I want to note that the reference to “Jennifer Lampton” in this paragraph was produced by cutting and pasting from the Fifth Circuit opinion!

In affirming the district court ruling of no-immunity, the Fifth Circuit held Lampton was quite simply not acting as a prosecutor:

Vis-a-vis the Commission, his status was merely that of a complaining witness,and complaining witnesses were not accorded absolute immunity at common law.

The decision was on a motion to dismiss; what this means is that, based upon the allegations of the complaint, Lampton isn’t immune as a matter of law.  So back to the trial court it goes (barring Supreme Court appeal) to decide the merits.

Here’s the Fifth Circuit opinion. David McCarty and Chuck McRae argued and won for the plaintiffs.

9 comments to The Fifth Circuit holds that Dunn Lampton found the limits of prosecutorial immunity

  • society's pliers

    Leslie is not Dunn’s brother – as your earlier post notes.
    Dunn’s brother is not involved.

  • NMC

    Thanks, society. I fixed that. In fixing it, I noted in the big block quote a reference to “Jennifer Lampton” as a plaintiff and thought “wait a minute, I quoted that block using cut and paste?” And, yep, it’s in the Fifth Circuit opinion. I assume that will get fixed!

  • Anderson

    Quoi! a prosecutor who fails to get a conviction isn’t entitled to use materials he subpoenaed to “get” his victims by any means necessary? What is the Republic coming to?

    I have never been impressed by Diaz as a jurist, but it has always seemed to me that Lampton engineered those prosecutions for the deliberate purpose of getting a liberal justice off the MSSC’s bench for political purposes. He should be the target of a DOJ investigation, not just a civil suit.

  • Ben

    Anderson: you speak heresy. Do you actually think that a US Attorney would target “liberal” people for political purposes? I am shocked. Shocked!

  • Observer

    ONCE AGAIN I recommend the series about prosecutorial misconduct by USA Today: Justice in the balance (http://projects.usatoday.com/news/2010/justice/).

    The justice system would be improved, not impeded, if injured parties could more easily bring direct actions against abusive prosecutors. The idea is for there to be some REAL accountability of justice department lawyers. Currently there is none – they can’t even be voted out of office.

    NOTE to BEN: It goes both ways. Ask Scooter Libby, who was caught up in an investigation that kept on going long after the investigators knew the leaker was Richard Armitage.

  • Anderson

    “It goes both ways. Ask Scooter Libby”

    One, that was not a partisan prosecution. Two, it was evident that Libby was lying to protect Cheney. Prosecuting the “real” offense would’ve been preferable, but Libby’s lies to the grand jury made it impossible to follow the trail past him. So he was indicted.

    That’s how it works: threaten prosecution to get the lower-down folks to roll over on their bosses. If the threat doesn’t work, you pretty much have to prosecute the henchman.

  • Alan

    “Chuck McRae argued and won for the plaintiffs.” REALLY!?!? Was he wearing the kilt or the biker leathers when he argued before the panel?

  • Mike Mitchell

    Dunn Lampton grew in a family practicing “equity” with those with whom they dealt . His education and practice of LAW never retarded his understanding of this code,. The same rule applies to all, regardless of bloodlines. I wish that there were more with such an ethic.

    Considering comments read, I only remark that “I hate to hear grown men whine.”

    Mike Mitchell

  • [...] Supreme Court Justice Oliver Diaz. (Diaz was acquitted in both trials. He’s also now suing Lampton.) That experience altered the way Diaz viewed the criminal justice system. He became a strong [...]

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