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Ex-Judge and Prosecutor to Square Off Over Bias

(CN) - A former Mississippi federal prosecutor cannot get immunity from civil allegations that he targeted a former justice of the state Supreme Court as a political opponent and improperly released his tax records to an ethics board, the 5th Circuit ruled.

"A prosecutor does not have carte blanche to do as he pleases with the information he can access," Judge Jerry Smith wrote for a three-judge panel. "He can use it only to fulfill his duties as a prosecutor, and [Dunnica] Lampton's actions went well beyond those bounds."

As the U.S. Attorney in Jackson, Miss., Dunnica, or Dunn, Lampton had prosecuted Oliver Diaz Jr., his ex-wife Jennifer and several others for fraud, bribery and tax evasion between 2003 and 2006. Oliver, a sitting justice on the Mississippi Supreme Court, was acquitted, but his wife pleaded guilty to tax evasion. The Diazes have said it was an unrelated charge.

After the trial, Lampton passed the Diazes' federal tax records, which were obtained in the course of the investigation, to the Mississippi Commission on Judicial Performance and filed a complaint about the justice's conduct.

The commission dismissed the complaint in December 2008, one month after Diaz lost an election for his seat on the court.

Noting that federal statutes prohibit government officials from releasing private tax records obtained in the course of their duties, the Diazes sued Lampton on various federal and state-law claims.

Lampton moved to dismiss the suit, arguing that his status as a prosecutor protected his conduct, but a federal judge rejected the contention and the New Orleans-based federal appeals court affirmed on Monday.

"Lampton ... asserts that immunity should extend to post-trial conduct instituting a new proceeding before a different tribunal," Smith wrote. "On its face, that conduct appears to be well outside the bounds of the common-law protection: Conduct undertaken after a federal prosecution is over is not part of the 'judicial phase,' and a state ethics proceeding is not part of 'the criminal process.'"

The former prosecutor, who retired in early 2009, also claimed that he deserved immunity since the privilege is sometimes extended to members of state ethics commissions. But the judges rejected this maneuver, too, concluding that Lampton appeared before the commission as a complaining witness, rather than as a commission member or a state ethics attorney.

In that vein, Lampton may be able to claim immunity from the Diazes' state-law claims, but federal law affords no such option, according to the ruling.

"Lampton is a federal prosecutor with no duty to bring complaints before a state ethics commission, and the actions for which he seeks immunity are unrelated to his prosecution of the Diazes," Smith wrote. "Lampton protests that he would not have had access to the tax records were it not for his role as a prosecutor, but that connection is too tenuous.

"Lampton's insistence that he had a duty under the Mississippi Rules of Professional Conduct to report Diaz's misconduct does not change that conclusion," the ruling continues. "Lampton could have reported Diaz's misconduct without releasing the tax records, so his ethical duty did not compel violation of the federal statute. Lampton's ethical responsibilities did not make the transfer of tax records to a state commission part of his duty as a prosecutor."

Shielding Lampton in this case, furthermore, does not protect prosecutors in general from retaliatory suits, the court found. "The opportunity to divulge confidential information to other bodies is much less frequent and will lead to less litigation that could interfere with the prosecutor's tasks," Smith wrote.

Rejecting the claim that courts have a duty to lessen the burden of litigation for prosecutors, the judges instead said the Diazes' suit is an important means to discourage prosecutorial misconduct. "In this case, the possibility of professional discipline or criminal liability ... should deter dishonest prosecutors from divulging private tax records," Smith wrote.

"The decision to release the tax records is unreviewable, and the harm is inflicted immediately," the ruling states later. "Thus, a civil suit is the only way to make the defendant whole."

According to a 2008 report from the Office of the Inspector General, Lampton had been on a short list of allegedly underperforming U.S. attorneys that the government wanted to fire in 2006. According to the report, Lampton was not among the nine prosecutors ultimately fired by Attorney General Alberto Gonzales because a White House liaison felt Lampton did well in the aftermath of Hurricane Katrina.

Diaz, a Democrat, has been vocal with his claims that politics inspired his prosecution, and that there was no basis for the charges. Lampton was appointed by President George W. Bush after Sept. 11, 2001.

The former justice was indicted after receiving significant campaign contributions from a prominent Mississippi trial lawyer, Paul Minor, who is also reportedly the state's largest Democratic donor. Diaz says the corruption charges were baseless since he never presided over any cases that involved Minor.

According to media coverage of the 2004 indictment, Diaz lived rent-free in a condominium Minor owned. Prosecutors apparently believed that Minor guaranteed a loan to Diaz's ex-wife to influence a libel case against Minor's father.

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