Court Revives Due Process Claim Over Ousted Juror

     (CN) – The D.C. Circuit revived due process claims against an assistant U.S. attorney and a juror officer who booted a grand juror from service for being “disruptive.”

     The ousted juror, Peter James Atherton, said he “felt a hostile attitude from a few members of the jury” after he requested more information about the elements of a crime. Some of the other jurors “seemed upset” that they’d voted to indict without full knowledge of the crimes, he claimed.
     Atherton, a half-Mexican, guessed that the hostility was partially based on his ethnicity; he said fellow jurors disapproved when he thanked a Hispanic witness in Spanish after the witness testified.
     The complaints funneled to assistant U.S. attorney Daniel Zachem, who confiscated Atherton’s notes and told him to report to Roy Wynn, director of special operations at the District of Columbia Superior Court.
     Wynn directed Atherton to juror officer Suzanne Bailey-Jones, who “summarily and permanently” removed Atherton from jury service, according to the D.C. Circuit.
     Atherton was never given a written explanation or a hearing.
     He filed suit against Zachem, Wynn, Bailey-Jones, and several other city and federal officials, alleging due process and equal protection violations. He claimed he’d been removed from the grand jury because he was opinionated and Hispanic.
     The district court dismissed all claims, in part because it found Zachem and Bailey-Jones protected by absolute immunity.
     The Washington, D.C.-based federal appeals court reversed that decision as it applied to the due-process claims against Zachem and Bailey-Jones.
     The assistant prosecutor is not entitled to absolute immunity, Judge Edwards ruled, because the actions for which he was being sued “do not relate to his performance as an advocate for the government.”
     Edwards denied absolute immunity to Bailey-Jones for similar reasons, saying it wasn’t her job to remove grand jurors.
     The court remanded to let the lower court decide if the defendants are entitled to qualified immunity.
     The three-judge panel upheld all other aspects of the district court’s ruling.

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