Upstate N.Y. Prosecutor Remains in the Hot Seat

     MANHATTAN (CN) – A upstate New York prosecutor does not have immunity from claims that he defamed a woman to the press, illegally listened to her voicemail messages and convinced her abusive boyfriend’s ex-wife to secretly record a phone call with her, the 2nd Circuit ruled.



     Stephanie Flagler of Utica pressed charges against her abusive ex-boyfriend Brandon Becker.
     Before trial began on March 17, 2009, Fulton County Assistant District Attorney Matthew Trainor worried that Becker would encourage Flagler to avoid testifying by fleeing. Becker’s ex-wife told him Flagler divulged plans to leave the state before trial, according to court documents.
     Trainor sought a material witness order to fend off that fate on March 1, convincing the county court judge that Flagler had stopped returning his calls for more than two years and ducked his attempt to subpoena her.
     Flagler says the prosecutor was lying to the judge, never made any attempt to call her, and had her arrested a day after she called to tell him that she would get back from vacation before trial began.
     Utica police arrested Flagler at her home on March 7, 2009.
     Fulton County Supreme Court Justice Richard T. Aulisi ordered her to spend a night in jail after a material witness hearing.
     Flagler says she was released the following morning on bail, but the sheriff’s department held onto her cellphone and passed it onto the district attorney’s office.
     Trainor then allegedly tried to access her voicemail, told reporters that she had been “hiding out,” and encouraged Becker’s ex-wife to record a phone call with her.
     She complains that the sheriff’s office still has not returned her phone, even though Becker already has been convicted.
     Flagler sued Trainor for allegedly making false statements, defaming her, accessing her voicemail and persuading a third party to record a phone conversation with her.
     U.S. District Judge Neal McCurn later tossed the charges on the basis of absolute prosecutorial immunity.
     Vacating most of that ruling, a three-judge panel revived most of Flagler’s claims last week because it found immunity did not extend that far.
     “This case requires us to revisit the purpose and scope of absolute immunity for prosecutors,” Judge Richard C. Wesley wrote for the panel. “The Supreme Court has found prosecutors absolutely immune from suit for alleged misconduct during a probable cause hearing, in initiating a prosecution, and in presenting the state’s case. On the other hand, the court has withheld absolute immunity for conduct unrelated to advocacy, such as giving legal advice, holding a press conference, or acting as a complaining witness.”
     Using that standard, the judges agreed that Trainor had immunity for his alleged false statements at the material witness hearing, but he could not be shielded from the claims relating to defamation and invasion of privacy.
     Judge Guido Calabresi said he “completely” and “fully” agreed with his colleagues, but wrote separately that Flagler’s false statements claim was not frivolous, despite its dismissal.
     “The case before us is a perfect example of a claim of absolute immunity that, though it loses (I of course refer to the portion of our opinion affirming the district court’s dismissal), is anything but frivolous,” Calabresi wrote.

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