Imbler v. Pachtman – Oral Argument – November 03, 1975

Media for Imbler v. Pachtman

Audio Transcription for Opinion Announcement – March 02, 1976 in Imbler v. Pachtman

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Warren E. Burger:

We will hear arguments next in 74-5435, Imbler against Pachtman.

Mr. Hanson you may proceed whenever you are ready.

Roger S. Hanson:

Mr. Chief Justice and may it please the Court.

Presented before the Court today is the case of Imbler versus Pachtman which presents an issue which has been litigated many, many times at the Circuit Court level throughout the United States and that is the question of the immunity or the liability which falls upon a public prosecutor under the 42 U.S.C. 1983 Civil Rights Act and Statute where in this particular case, there has been an allegation in the complaint of knowing use of perjury and also presents the rather unique set of facts that prior to the initiation of this lawsuit, there has been continuous litigation throughout the California Supreme Court through the United States District Court in Los Angeles, U.S. Ninth Circuit and so forth where we have opinions which have determined and fixed that there was in fact knowing use of perjury and a writ of habeas corpus was granted under 22 U.S.C., 28 U.S.C., 2254 for this knowing use of perjury.

William H. Rehnquist:

We also have opinions going the other way, do we not, from the Supreme Court of California?

Roger S. Hanson:

I am glad you asked that question Mr. Justice Rehnquist because in fact the opinions of the California Supreme Court did not address themselves as thoroughly as opinion of U.S. District Judge Warren Ferguson in Los Angeles.

This was due to a multiplicity of reasons.

It was due to inadequate briefing in my opinion on the lawyers.

It was due to perhaps an over ignoring by the California Supreme Court of some of the things that are place in this case within the meaning of Napue versus Illinois.

William H. Rehnquist:

Well, nonetheless you know you can weigh the opinions the way you want, but what you have is seven justices of the Supreme Court unanimously finding against your client on this point.

One single Federal District Judge upsetting the thing and three judges of the Ninth Circuit affirming?

Roger S. Hanson:

Plus petition was made by the State of California to this Court to have that reviewed and it was nine to nothing against voting any hearing.

William H. Rehnquist:

Well, how do you know that?

Roger S. Hanson:

I know that because I opposed it.

I was asked to file a petition in opposition.

William H. Rehnquist:

Well, how do you know what the vote was in our conference?

Roger S. Hanson:

Well, there was no votes that suggested certiorari be granted.

William H. Rehnquist:

Well, is that the test?

Is that how you find out what the vote was in our conference?

Roger S. Hanson:

Well, I know that some of the denials of certiorari are accompanied by Mr. Justice X and Mr. Justice Y would grant certiorari in this case.

So I am basing it on that.

Of course I do not have access to how the voting took place other than that, but I can assure this Court that within the meaning of 28 U.S.C, 2254, the same record was examined by the Federal District Judge in Los Angeles.

There is no new evidentiary hearings took place and based on that record, the opinion at 298 F. Supp. 795 was prepared and that opinion is accurate and accurately reflects what took place in this case.

Those findings for that District Judge are more complete than the California Supreme Court and in fact are accurate situation that occurred here, and you know, I cannot force the California Supreme Court to make findings and they also, when they granted in order to show cause in the California Supreme Court, they restricted the inquiry by certain questions which narrowed down the scope that they were going to take a look at in the significant Napue versus Illinois situation that occurred in this case, was really ignored by them.

Namely, unquestionably, the prosecutor in this case knew of certain false statements that were being made by his witness and he chose not for whatever reasons he had at that time to correct them.

Potter Stewart:

Mr. Hanson, excuse me Chief Justice.

Mr. Hanson, all the merits of the habeas corpus proceeding may have something to do with this case?

The primary and cardinal question here is the extent of the immunity, if any, of prosecutors, is it not?

Roger S. Hanson:

I understand.

Potter Stewart:

And I know that you took a back up position that even though there might be immunity in the normal situation, at least there should be an exemption when a Federal Court has found that there are correct and that there was a knowing used of perjured testimony, but the first and basic question is the immunity of the prosecutor, quite a part from the merits of this case, is that not correct?

Roger S. Hanson:

That is correct.

No question about it.

Potter Stewart:

That is what I thought.

Roger S. Hanson:

Now, as to that particular situation, there is no question that the national ballot, if you count up all the cases that have gone one way versus the other way, overwhelmingly is against the petitioner in this particular case, just without question.

However, there has been some, in my opinion, correctly made inroads out of the U.S. Sixth Circuit in Ohio in the case of Hilliard versus Williams which again has been decided by them.

I do not have the new citation on it, but it went up on the damages the second time and the U.S. Sixth Circuit again affirmed that line of reasoning and sent it back to the District Court to more correctly determine damages about the $1.00 limit that was awarded at the time of the trial by the District Judge.

So I think the situation boils down to what type of case are we going to permit this in?

I do not ask the Court and I do not think it is really necessary to ask the Court to say, yes, the floodgates ought to be opened to allow any sort of lawsuit to be filed against the public prosecutor.

I do not think that is a situation at all.

I think there are many safety valves that can be accorded here and still allow the suit to be filed on its merits and among them are certainly pre-trial hearings, whereby the District Judge would inquire into the merits of the case and inquire into what I believe to be the four things that must really be inquired in.

Number one, did he do a Good Faith Act? Number two, was his act within his discretion?

Number three, was it within something provided by law and number four, was it within his jurisdiction?

William H. Rehnquist:

Would it not just good faith be pretty much a question for the jury in every case —

Roger S. Hanson:

Well —

William H. Rehnquist:

— under review, subjective state of mind?

Roger S. Hanson:

That is very possible.

That is very possible, but the Good Faith Act would be within the jury’s question, no question about it.

William H. Rehnquist:

So that you would have a jury issue under your view of what should be the rule in almost every case?

Roger S. Hanson:

Well, I do not believe in almost every case, certainly not in this case, certainly not in this case, that is before the Court now.

In other words, what I am saying is, if there is an allegation of knowing use of perjury or something of that nature which is clearly without the scope of his duty, without the scope of his jurisdiction, not provided by law condemned by all the decisions of this Court as well as the California Supreme Court and any Court you want to pick up, that is something that I think has to stand.

It has to go to the jury, they have to respond to, no question about it if that is factual issue.

Thurgood Marshall:

(Inaudible) In this case, you have a finding by a court, a competent court, in writ of habeas corpus.

That is your case, what do you want to extend it beyond that?

Roger S. Hanson:

Well, I do not necessarily want to, but I am addressing myself to Mr. Justice Stewart who said the broad question should be considered first.

Should the suit be filed, allowed to stand in general under allegation.

Thurgood Marshall:

But your point I assume is that where there has been a finding in a court on a habeas corpus that the conduct was thus and so that at least entitles you to a hearing?

Roger S. Hanson:

Yes, no question.

In other words, I am going on —

Thurgood Marshall:

I just want to be sure you are not abandoning that?

Roger S. Hanson:

Oh! No! Not at all.

Roger S. Hanson:

I am going generally on the type of analysis provided by Learned Hand in the Gregoire versus Biddle decision 177 F.2d I think at 579, there is a citation on it.

and certainly there is probably no more revere to Judge Learned Hand at the circuit level and he said that if it were possible before the trial to ascertain which suits had merit and which did not.

It would be really tragedy to dismiss a suit that did not in fact have merit and I suggest that this Court —

Thurgood Marshall:

And he also said that even if the actual malicious immunity was there, you do not want to adapt that, do you?

Roger S. Hanson:

He did say that, that is correct.

Thurgood Marshall:

He sure did.

William H. Rehnquist:

I should think that is the last quotation you would want to make in support of your cause?

Roger S. Hanson:

Well, I say that our case comes within that canopy because we have come as close as we could to the situation with the grant of the federal writ of habeas corpus because of that particular issue.

In other words, this man has had his preliminary hearing.

The reason that —

William H. Rehnquist:

He has had his preliminary hearing where?

Roger S. Hanson:

He said his preliminary hearing by virtue of this 22 U.S.C. or 28 U.S.C. 2254, grant of writ of habeas corpus?

William H. Rehnquist:

Well, why is the respondent bound by that proceeding? He was not a party to it, was he?

Roger S. Hanson:

Well no, but the record is there Mr. Justice Rehnquist and he admitted.

He was called as a witness in this evidentiary hearing and he admitted under oath that he had done these things.

William H. Rehnquist:

You may use this testimony against him then I presume, but if he is not a party, I would think he would not be bound?

Roger S. Hanson:

Well, the U.S. Ninth Circuit said he was not bound.

I tried to urge in the U.S. Ninth Circuit the type of res judicata by virtue of the grant of the writ by the District Court.

They did not go along with that at all.

However, the point is simply that if you have done as extensive litigation as we have done on this particular case, it then gets around the contention that they are being required to respond to a frivolous type of claim.

It certainly is not a frivolous type of claim.

It is a claim that has merit by virtue of the fact that this was granted by the U.S. District Court and I can only tell this Court that it was granted because that District Judge at my urging and on my briefing examined that record with due scrutiny which was not done in the California Supreme Court or if it was done, it was ignored.

William H. Rehnquist:

But the District Judge has been reversed no less than three times by this Court since I have been a member of it?

Roger S. Hanson:

I do not know.

I am only talking about this case, only about this case and this case was not reversed.

The U.S. Ninth Circuit upheld his grant and this Court denied certiorari.

As far as I know with no votes.

So there is no question in my mind that at least the threshold showing has been made.

Now, in this particular case as the Court perhaps knows there has been numerous contentions made that it is going to open the floodgates to litigation and I say again there is numerous safety valves that really militate against this and I think the first one is that usually people, like in the position of Mr. Imbler, are seeking substantial damages.

They go to a lawyer and they say I want to do this.

Roger S. Hanson:

I want to bring this lawsuit.

Usually the lawyer is not in the position nor are they able to pay an hourly rate, so it is often done on a contingency basis.

I, therefore, would suggest to the Court that any lawyer would probably scrutinize himself the record.

He would try to make inquiries to see if he is chasing a comet that has no merit at all, just like a personal injury case that comes in to the office of a lawyer, he would examine it with diligence to see and I think that there is an immense safety valve to the bringing of these lawsuits.

Warren E. Burger:

Do I recall correctly that this case came before the California Supreme Court twice?

Roger S. Hanson:

In fact three times.

Warren E. Burger:

Three times?

Roger S. Hanson:

The first time, it was on the automatic appeal which is provided under our penal code because a dissent was imposed.

At that time, none of this matter was brought before them because it was not disclosed.

Warren E. Burger:

But was it not — was it treated to in any degree at all in the final disposition by the California Supreme Court?

Roger S. Hanson:

The second opinion Mr. Chief Justice at 60 Cal. 2d 554 was disclosed as a California Supreme Court came to treating it and it again ignored many of the issues.

Warren E. Burger:

Did Justice Traynor write both of the opinions?

Roger S. Hanson:

He did, the first two opinions.

Warren E. Burger:

The first two —

Roger S. Hanson:

I think he wrote all three opinions.

The third opinion is at 61 Cal. 2d and that came about because of a violation of a so-called People versus Morris decision in the California Supreme Court which said that the prosecutor could not comment to the jury that life sentence in California really did not mean a life sentence and that if you want to make sure this fellow was not out on the street again, you better execute him and they voted the death penalty against Mr. Imbler because of this comment and that case was given retroactivity by the California Supreme Court and so Mr. Imbler was able to take advantage of that, which generated the third opinion in the California Supreme Court and then the prosecutor elected not to try the penalty phase over again and stipulated to a life sentence as opposed to a death sentence.

So that was a posture of it.

Harry A. Blackmun:

What are you asking for here only damages, any other kind of relief?

Roger S. Hanson:

Only monetary damages, that is correct and in the District Court lawsuit that is correct.

Now, I think also, I think alluded to this very briefly, that I know that one of the specters that is hanging over an attempt that is being made here by the plaintiff to allow him to bring this suit is that there is going to be felt that some national precedence is going to be set and I would again say to this Court that as happened in this particular case, certain pre-trial hearings can be held, whereby the plaintiff would be required to make a rather significant showing that he falls within the canopy that I am urging in this Court namely, it is something that has to be outside of the discretionary act of the prosecutor and ostensibly made with no good faith and outside of his jurisdiction and things of that nature.

William H. Rehnquist:

But is it not good faith almost always a question for the jury?

Roger S. Hanson:

Well, certainly it is probably always a question for the jury.

William H. Rehnquist:

But then you would not eliminate any case really by your pre-trial hearing, would you?

Roger S. Hanson:

Well, I am mentioning more than that alone.

I am mentioning whether it is a discretionary act or not.

Certainly the bulk of these cases, I think are correctly decided in granting immunity because the bulk of the things that happened are within the discretion of the prosecutor.

For example, the metamorphosis in the Ninth Circuit starts of with the case that, after this act was passed, starts of with a case called Cyrus versus Cole I think and Cyrus versus Cole was a suit versus not only the prosecutor, but also the judge because the man was convicted of Calf-stealing and he was sentenced for a felony as opposed to a misdemeanor.

Now, certainly, that probably was a mere mistake on the part of the judge and was correctly thrown out and that was the 1963 case.

The next time the U.S. Ninth Circuit examined, this was in a case called Harmon versus Superior Court 329 F. 2d 154, there it was a simple domestic relation squabble in State Court.

The plaintiff in the civil right suit was disappointed apparently after results that took place in his state court domestic relations matter and he brought a lawsuit against the state’s district attorney who was seeking to make him pay child support.

Roger S. Hanson:

Again, I think clearly, properly thrown out.

If something within his discretion he was doing his day to day job, doing what he had to do, but the knowing use of perjury is not that class of cases.

It is not that class of thing.

Warren E. Burger:

Well, the case that have decided this issue against the theory that you are arguing have put it on the basis that not of the risk of having a damage verdict, but against the dangers and the risks involved in having a prosecutor spend his time defending the suits instead of carrying out his function of prosecuting cases, is that not the choice that has been made?

Roger S. Hanson:

Well, I understand that that is a language that appears in many of the cases.

There is no question about it.

That is why am urging in this Court that where there has been extensive litigation, culminating in a successful grant of the writ by a District Judge upon examination as the record as he has to do under Townsend v. Sain, then we are not dealing with something that is non-substantial.

We are not dealing with frivolity.

We are dealing with something that should be responded to.

Otherwise, it makes the decision of the District Attorney, the Supreme Law of the land, unreviewable by any Court at all.

And this Court, just last term, in a couple of cases, in the Scheuer versus Rhodes decision allowed the suit against the governor of Ohio.

In Wood versus Strickland, a suit against the school board.

Now, I would suggest that the language of Scheuer versus Rhodes again deals with the good faith discretionary basis, that governor ordered out the National Guard in Kent, Ohio at that university because he perceived he had to do something quickly.

Warren E. Burger:

You then apparently equate prosecutors and all other executive officers as being on the same level?

Roger S. Hanson:

I do.

I think that the so-called quasi-judicial immunity which creeps into the decisions is really a misnomer.

Surely, the Attorney General of United States, the Attorney General of California, these are officers that are responding to the President of United States or the Governor or so forth.

They are an arm of the Executive Branch.

There is no question about that and the question or the reason that this has come into the cases without a doubt is because allegedly a prosecutor exercises the discretion just like a judge does.

Warren E. Burger:

Do you think a governor calling up the National Guard is exercising a quasi-judicial function?

Roger S. Hanson:

No, I think he is exercising an executive function as a chief law officer of the state, but to insulate one side to a lawsuit as they are attempting to do with the public prosecutor from review by any type of civil rights action by any type of federal judge, I think elevates him to a position where his decision becomes above the U.S. Constitution.

It becomes above review by anybody and I would also suggest that really there are not that many of these suits.

You can check through all the books and compare it with a number of other suits and there are really not that many.

Warren E. Burger:

Do you think there might be more of them if you prevail here?

Roger S. Hanson:

No, I do not think so Chief Justice Burger because I think this Court can delineate certain guidelines that have to be followed and I would hope that they would do so in allowing this suit to stand.

I think that the Court can delineate guidelines in the way of some type of preliminary hearing were in fact merit must be shown by —

William H. Rehnquist:

You have mentioned that about three times during your argument Mr. Hanson.

Are you suggesting that these would not be subject to the normal standards of pre-trial hearings and the right of jury trial, uncontested issues of the fact that we would just carve out some exception to the federal rules and civil procedure for these kind of cases?

Roger S. Hanson:

I think that surely, if you could not show that he was behaving outside of a discretionary act, it would be automatically subjected to dismissal, that is one of the issues.

William H. Rehnquist:

Well, okay now.

William H. Rehnquist:

You say outside of a discretionary act.

Now, supposing I am a prosecutor.

During the trial I am confronted with the defense counsel’s demand for Brady material and I make the best judgment I can.

I act in good faith.

I turn out to be wrong, the appellate Court reverses me.

Now, is that a discretionary act on my part?

Roger S. Hanson:

It is a harder decision obviously than the knowing use of perjured testimony, a harder decision.

William H. Rehnquist:

Well, but even the knowing use of perjured testimony, you can end up with the finding to that effect on the basis if hindsight, but the question in the eyes of a prosecutor maybe, is this witness lying or is he not?

Can I consistently with my constitutional requirements put him on the stand?

Those things do not always look black and white at the time they happen?

Roger S. Hanson:

I understand, but in this particular case, he admitted to knowing this, if it pleases the Court, he admitted to knowing the status of this man that he had been committed to an insane asylum by a court and he said at the evidentiary hearing I decided to let the jury attempt to do — to figure it out themselves.

William H. Rehnquist:

And the Supreme Court of California upheld the prosecutor’s position on the basis of that evidentiary hearing?

Roger S. Hanson:

Well, by ignoring that particular thing in its opinion, by ignoring that.

Warren E. Burger:

You mean Chief Justice Traynor ignored what you say is the heart of this case?

Roger S. Hanson:

That is correct.

That opinion — if you place before side by side the two opinions of the California Supreme Court and the U.S. District Judge, they obviously consider different things.

The U.S. District Judge considered many more factors.

Now, certainly I do not think my opponents are suggesting that that U.S. District Judge falsified any material what he put in that opinion.

He certainly did not.

He quoted directly from transcript material.

Now, I of course was not the lawyer before the California Supreme Court, so I cannot say Gee! You know, I did a bad job there, but I have read all the briefs and there is mountain of material that goes from the floor to the ceiling on this case and they just simply did not get to the merits of the case like the U.S. District Judge did.

Thurgood Marshall:

If you were not there, how do you know what Judge Traynor had?

I assume when you have passed all the judgment on that you argued the case?

Roger S. Hanson:

No, I just read the opinion.

Thurgood Marshall:

So yours is all based on reading opinion that brought this conclusion that he did not know what he is talking about?

Roger S. Hanson:

No, I have read the briefs and some of these materials were not properly briefed because there are some people that say, well, unless there is actual overt perjury it is different then the Napue versus Illinois situation where he is required to change or to call to the attention of the trier of the fact known false statements.

Some people distinguish that in their mind.

Thurgood Marshall:

The point is I do not think you need to characterize a judge’s actions in order to win your lawsuit?

Roger S. Hanson:

Well, that is possible.

(Inaudible)

Roger S. Hanson:

Well, I hope that I do not have to.

I think that considering the Wood versus Strickland analysis where this Court accorded liability against an Arkansas School Board, if you rely on that type of thinking of this Court then a fortiori this case ought to be allowed to stand.

Warren E. Burger:

Do you think their functions are quasi-judicial?

Roger S. Hanson:

No, I do not, but I think that the point I am trying to make out of this is that a member of the Arkansas School Board ostensibly has no training ground to become a member of the School Board.

He may be the local grocer; he may be a postman or something.

He may serve on the School Board because it is a civic duty.

He has probably very little knowledge about what the civil rights of those students are, but this Court said that as to existing law that is well established in this country, the School Board should be held to know about it.

They are not going to be held to anticipate changes in constitutional law, but they are certainly going to be held to anticipate what the existing constitutional law is and certainly a fortiori with the law school training of a prosecutor and he is presumed knowledge of the canons of ethics and his presumed knowledge of the decisions of this Court from Mooney versus Holohan and Napue versus Illinois, Miller versus Pate, the United States versus Giglio, and the various decisions which have uniformly condemned this particular type of behavior.

This man surely is put on knowledge on what he was doing is not only is wrong biblically, but is wrong legally.

William H. Rehnquist:

On the other hand, in the case of a prosecutor, you have some corrective devices available other than a 1983 action, do you not?

You have the supervision of the Trial Judge, your right of appeal in the criminal case and your right to habeas corpus which you took advantage of here.

That does not give you money damages, but it does offer you a root by which you can correct the alleged prosecutorial misconduct?

Roger S. Hanson:

That is correct.

It gets him out, but this man did ten years for this crime.

Four years on death row, six more in maximum security from the period of his life from about 39 to 49, he spent all his time while his children grew up.

He did not see the children except when they may have come to the penitentiary.

He was within seven days being executed on one occasion, within 21 days being executed on the second occasion.

Why should he not be able to get some monetary damages to attempt to rectify —

William H. Rehnquist:

Well, he really has never been acquitted by a jury, has he?

The state just decided not to retry him?

Roger S. Hanson:

That is correct, but —

Warren E. Burger:

It is not easy for us —

Roger S. Hanson:

He stands —

Warren E. Burger:

— to retry a man after 10 or 12 years following the alleged murder, is it?

Roger S. Hanson:

Well, it is probably not that easy, that is correct, not that easy, but from my experience with the prosecutors of the State of California when they are looking for a witness where they have a lot easier time to get witnesses than the defense does and they have a way of resurrecting these people.

I do not know any of them that have been dead and if this thing goes to back to District Court, I would suspect that these people would somehow come out of the woodworks to testify for the respondent in this particular case.

There is little doubt in my mind about that.

I would say that in closing to this Court that at least this Court should allow this case to go to the jury.

This case should stand at least by itself.

If the Court does not wish to allow the general type of allegations, at least this case where there has been a decision by United States District Judge, and affirmed in the Ninth Circuit and where cert has been denied by this Court under the facts that had been set forth in that opinion, that satisfies the situation that he is not being required to respond to a frivolous type of contention.

Roger S. Hanson:

Far from it and I would urge on this Court the reasoning of the U.S. Sixth Circuit in the Hilliard opinion that these cases stand on their own.

Otherwise, the few times that this happens is going to place a prosecutor above review by anybody and I think that that not only as an intellectual non-sect order, but a legal non-sect order and a tragedy more or less.

In addition, there is little doubt in my mind that this case ought to stand and I think that this Court ought to delineate some guidelines for it, allow it to go to trial.

And another safety valve, I think is in fact when it does go to trial, maybe the plaintiff may not be able to make out his claim.

Certainly, when the Scheuer case went to trial on Ohio, they lost, but I think correctly, they were allowed to at least stay in court and make their contentions.

This type of thing certainly differs from Scheuer because this man in his decision to use perjury in this case and failed to correct it.

He is not faced with some decision that he has to exercise discretion on or where he has to call out a National Guard in order to stop civil disorder.

He is faced with something that —

Byron R. White:

Were the acts involved in this case for the prosecutor arguably criminal under California Law?

Roger S. Hanson:

I would certainly say so Justice White.

Now, they had not done anything about them.

Another contention often made this —

Byron R. White:

The knowing use of perjured testimony, if that is a crime under California Law, then prosecutor is exposed to criminal liability?

Roger S. Hanson:

Potentially, he would be.

Nothing has ever happened to this man.

He still occupies a significant role in the District Attorney’s Office in Los Angeles.

Byron R. White:

Well, I know, but is it clear that the knowing use of perjured testimony is a crime?

Roger S. Hanson:

Yes sir, no question about it.

I think my opponent in this brief has set forth some statutes to set that up.

Surely, that if the death penalty would have been carried out in this case, Mr. Pachtman himself would be subject to prosecution for murder.

We have a statute that provides that.

Had the death penalty been carried out against Mr. Imbler, Mr. Pachtman himself could be prosecuted for murder in this particular case, there is little doubt about it.

Byron R. White:

What about the damage suit under California Law?

Roger S. Hanson:

You mean could it be brought under California Law?

Byron R. White:

Could this prosecutor be sued for what he did under the California Law for damages?

Roger S. Hanson:

We have a case before the California Supreme Court which is examining that right now called the Horvath case.

People were —

Byron R. White:

Apparently then the question of immunity under California Law is not settled?

Roger S. Hanson:

Not fully, although the California Tort Claims Act of course does provide for suits against officers of the county, officers of the city and so forth.

However, I think in that particular situation the California Tort Claims Act is also given a type of immunity.

Roger S. Hanson:

This would be the first case which opens that up.

Byron R. White:

This is not a suit against the sovereign.

This is the suit against the prosecutor personally?

Roger S. Hanson:

But our Act provides that they will respond in damages for a successful suit against one of the employees.

Warren E. Burger:

Not in a federal case necessarily?

Roger S. Hanson:

That issue is going to be decided by the Government Supreme Court program.

Warren E. Burger:

Very well.

Thank you.

Mr. Farrell.

John P. Farrell:

Mr. Chief Justice and may it please the Court.

I would like to respond first to a couple of factual matters as to the Horvath case.

The issue there is whether a suit could be brought in the state courts under the Federal Civil rights Act and if so the application of the Tort Claims Act.

Under the California Tort Claims Act itself there would be immunity for discretionary acts and an absolute immunity for malicious prosecution.

And then in the California Courts they would be the General Common Law defense as to defamation and use of testimony at trial, but there is a special statutory remedy for person convicted with crime who is later pardoned and compensation can be provided under statutory scheme for portion of his sentence he served.

So that is not a suit against the prosecutor to suit, a claim filed with the state under Penal Code Section 4900.

It is in our list of remedies that are available to a person.

So there is a monetary scheme available without a suit being maintained under the California Law against the prosecutor.

Byron R. White:

So under California Law there is a damage remedy against this prosecutor if you can show he knowingly used perjured testimony?

John P. Farrell:

No, there is not a damage remedy against the prosecutor.

There is a claim for monetary compensation for person who is deemed to be unjustly convicted.

Byron R. White:

Out of state fund?

John P. Farrell:

Yes.

Byron R. White:

Well, how about suing the prosecutor?

John P. Farrell:

No, under the Tort Claims Act.

He would have an absolute immunity from malicious prosecution and under the Tort Claims Act, all common law defenses as to the use of testimony would apply and I would feel that that would clearly cover the matter.

Also, there is a decision —

Byron R. White:

Are you suggesting that under the California Statutes or the California Common Law that a prosecutor is absolutely immune?

John P. Farrell:

He is absolutely immune from malicious prosecution.

That specifies clearly.

He is immune for discretionary acts together with other officials and all common law defenses apply under the Tort Claims Act and the common law defense for defamation or the use of testimony during trial in the quasi-judicial immunity which we are arguing here would be also have to fall under the California Tort Claims Act.

John P. Farrell:

As a general common law, quasi-judicial immunity would be applicable in the California Tort Claims Act and at present certainly in the law of California, he could not recover for the same reason that we are arguing here basically, that is the —

Harry A. Blackmun:

You mean there is an absolute immunity defense available to him under the Tort Claims Act?

John P. Farrell:

The quasi-judicial immunity under the common law —

Harry A. Blackmun:

For this prosecutor it would be an absolute immunity, would it not?

John P. Farrell:

Right.

The common law of quasi-judicial immunity would apply any statutory —

Harry A. Blackmun:

I know it.

What is a quasi-judicial immunity, let us say an absolute immunity, is that your position?

John P. Farrell:

Because it is absolute under the common law.

Thurgood Marshall:

Would it be absolute if he is found perjury?

John P. Farrell:

Yes, because the —

Thurgood Marshall:

Because he is a prosecutor?

John P. Farrell:

Right.

Thurgood Marshall:

Is there any other reason?

John P. Farrell:

Well, yes there is a —

Thurgood Marshall:

It is a crime, is that a crime in California?

John P. Farrell:

It is a crime.

Yes, there is in turn —

Thurgood Marshall:

Could he be convicted of it?

John P. Farrell:

Yes, he could be convicted of it.

Thurgood Marshall:

But he could not be liable in civil action?

John P. Farrell:

Right.

Thurgood Marshall:

Now if he is convicted of it, would he then be liable in a civil action?.

John P. Farrell:

No, there is no — at present, certainly, there is no rule of that kind.

The quasi judicial immunity of a prosecutor —

Thurgood Marshall:

The only person that can do that in California is upon perjury get away with it is a prosecutor?

John P. Farrell:

A judge could also do that.

Thurgood Marshall:

Who else?

That is it?

John P. Farrell:

Well, right that would probably a legislator conceivably, if it were a legislative act that would be difficult to imagine.

Thurgood Marshall:

(Inaudible)

John P. Farrell:

Well, the California cases are pretty much along the line of the general national cases.

A clerk for instance, a probation officer giving a sentencing report to a judge, a clerk of the Court carrying out a directive of the judge, typically a sheriff or a marshal carrying out a directive of the judge.

I think quasi-judicial immunity has two branches.

One branch is a person who is exercising a discretion that is similar to that exercised by a judge and so quasi-judicial immunity is sometimes used be civil service commission for instance because it is making a determination of facts like a judge.

The other —

Thurgood Marshall:

(Inaudible)

John P. Farrell:

Well, the decision to prosecute is like a judge.

Thurgood Marshall:

(Inaudible) even outside the courtroom?

John P. Farrell:

Yes, that is taken —

Thurgood Marshall:

(Inaudible)

John P. Farrell:

The decision on what evidence to present weighing the evidence to present, weighing the —

Thurgood Marshall:

(Inaudible)

John P. Farrell:

A defense counsel, well, there has been several —

Thurgood Marshall:

(Inaudible)

John P. Farrell:

Well, there has been Court of Appeal decisions saying that if a public defender for instance who has been sued under Civil Rights Act is quasi —

Thurgood Marshall:

(Inaudible)

John P. Farrell:

No, he cannot be sued for it.

Basically he cannot be sued —

Thurgood Marshall:

Why is the so? (Inaudible)

John P. Farrell:

Basically, a private defense counsel could not be sued for what he did in the courtroom.

If Mr. Hanson for instance, I have several factual errors, I am sure he made in good faith, but I could not sue him or Mr. Pachtman could not sue him for him what he argued here about the knowing use of perjury.

For him calling Mr. Pachtman a perjurer because defamation is an absolute immunity for presentation at the courtroom in the pleadings and in the argument to a Court and the reason for that it is —

Thurgood Marshall:

(Inaudible)

John P. Farrell:

Well, but that is an absolute immunity.

That is what private counsel —

Thurgood Marshall:

(Inaudible)

John P. Farrell:

Well, I do not think there would be a civil suit for subordination of perjury against the private lawyer, only a government lawyer.

Thurgood Marshall:

Why?

John P. Farrell:

Well, I cannot think of any private action unless perhaps some intention and put you on motion of the distress.

John P. Farrell:

The remedy for subordination of perjury was criminal.

Thurgood Marshall:

(Inaudible)

John P. Farrell:

But that would not be malpractice if it be against the opponent.

There would be no contractual relationship there.

I think under the common law, a private counsel, in fact, there would be no civil remedy that would be available to his opponent from the subordination of perjury because he could not get them for defamation or the use of testimony and there would be no other action available.

Thurgood Marshall:

(Inaudible)

John P. Farrell:

And that is a very sufficient remedy I would think.

Thurgood Marshall:

(Inaudible)

John P. Farrell:

No, I would not do it.

We are only civil counsel.

We would not do that.

We defend and we do not prosecute.

It would be the attorney general in all likelihood would bring it or a federal prosecutor could bring him for violation of the criminal provisions of the civil rights action.

There certainly, I think there are two branches as we presented of the civil rights action.

You could view 1983 as one to help enforce a standard of behavior and second to provide some forms of redress.

Well, as to enforcing a standard of behavior there is a criminal action that can be brought by the U.S. Attorney.

We present all the criminal actions that can be brought by the state government against him.

There is a judge sitting there who assumedly is fair.

This matter, for instance, went all the way through the California Courts who upheld the prosecutor all along the way.

Not only that, there was then the right to petition this Court for certiorari and there was the final right which was exercise of bringing a habeas corpus in a federal court.

Byron R. White:

What if a prosecutor, you say he is protected if he is suborns perjury, if he bribes the witness to testify in a certain way?

John P. Farrell:

Well, no, there may be –- well, first, he is not protected certainly.

Byron R. White:

But he is absolutely immune under 1983?

John P. Farrell:

Well, I am not sure if he bribed the person.

The act of bribery would not be taking place in the courtroom and would be a separate action of transferring money.

I think as to the action of transferring money that is not a prosecutorial act.

Byron R. White:

So you say he is not immune from that?

John P. Farrell:

I do not think he would, for the payment of a bribe, I do not think he would be.

Byron R. White:

Well, now what if he is in the courtroom, what if he is cross-examining the witness and he just loses his temper and he goes and punches the witness in the nose?

John P. Farrell:

That is not a prosecutorial act.

Byron R. White:

You mean that is not just within the normal balance of prosecutorial behavior?

John P. Farrell:

Right.

Byron R. White:

Is that right or not?

Is that what you are saying?

John P. Farrell:

No, I am saying it is not the type of action that is typically prima facie disregarding motive.

It is not a prosecutorial act to punch someone.

If you were to ask a question —

Byron R. White:

Alright, now the same prosecutor though, the same prosecutor puts a witness on the stand knowing he is perjuring himself.

He knows it.

Now, and upon proof of that the conviction is going to be reversed?

John P. Farrell:

Right.

Byron R. White:

Because there is a deprivation of due process?

John P. Farrell:

Right.

Byron R. White:

Now, is that within the normal bounds of prosecutorial conduct to put on the stand knowing perjured testimony any more than punching the fellow in the nose?

John P. Farrell:

No, it is not normal to do an evil thing.

I think we can —

Byron R. White:

Well, I did not say that is normal.

Is it within the bounds of a prosecutorial behavior?

John P. Farrell:

Well, it is not normal prosecutorial behavior to do something evil and criminal, but the action of asking the question is normal prosecutorial behavior and that is what is the key too, just as in judicial immunity and in legislative immunity.

It is the form of the act whether the act is normal behavior disregarding motive because there is nothing easier than alleging him proper motive, certainly nobody is going to bring a lawsuit in act in alleged good faith.

Byron R. White:

If you threaten the witness, you either testify this way or I will prosecute your mother or your brother or somebody, what about that?

Then you ask the question in the courtroom and the witness responds exactly the way you told him to respond under this threat.

Now is the prosecutor absolutely immune?

John P. Farrell:

I think he is asking the question in the courtroom definitely.

The asking of the question in the courtroom is the normal action of the prosecutor.

Byron R. White:

Now he brings — there is lawsuit going afterwards for convicting me from using false testimony, a knowing use of false testimony which was obtained by a threat issued by the prosecutor?

Now that is a 1983 suit, precisely this kind of a suit and the plea is of absolute immunity?

John P. Farrell:

There may possibly be separable.

The action of threatening if that could be pinpointed as a separate location as a separate action which would not be normal action of the prosecutor, but the action —

Byron R. White:

Are you suggesting then that we really should divide prosecutorial behavior in the various categories, at least two, some that are really part of the prosecutorial acts and some are not?

John P. Farrell:

But not by characterization of motive and not by characterization of whether it is true or false.

We do not know whether this testimony is perjured.

The California Supreme Court held specifically it was not.

The federal district court judge reading the record of the California Supreme Court nine years later or six years later, said it was false.

He did not say it was perjury.

Harry A. Blackmun:

Mr. Farrell, if I understood you to suggest your colloquy of Mr. Justice White that where the prosecutor to bribe a witness to give a certain testimony, he might be subject to a suit for damages?

John P. Farrell:

I think the act of bribery.

The act of paying over the money would not be a normal prosecutorial function.

Harry A. Blackmun:

Tell me then, but I gather what is relied on here are the judicial immunity cases?

John P. Farrell:

Right.

Harry A. Blackmun:

Now, suppose a judge takes money and this actually happened as you know, to sell decisions, he is immune, is he not?

John P. Farrell:

He is as to the decision.

Harry A. Blackmun:

No, he is immune from damages for having said?

John P. Farrell:

I am not sure that those cases are, I have read some of the cases and they usually are suing him for rendering a verdict by virtue of bribery.

Well, that is like saying absolute knowingly soliciting perjured testimony, rendering the verdict is what judges do.

Well, that is the way it is (Inaudible)

John P. Farrell:

Well that —

And he proves his damages —

John P. Farrell:

Well, if he can prove the prior act —

Harry A. Blackmun:

Well, I just want to be clear.

In any event you would make a distinction between the absolute immunity for a judge who sells a decision and which is absolute and would suggest it may not be absolute in the case of prosecutor who bribes a witness to give certain testimonies, is that it?

John P. Farrell:

No, I am trying to say that they are the same thing that the act —

Harry A. Blackmun:

Well, I know, but what about in terms of absolute immunity?

I thought you said to Justice White earlier there would be an absolute immunity for the prosecutor who bribed the witness to get testimony?

John P. Farrell:

No.

There would be for the soliciting of the testimony at the trial, if there were alleged and proved that payment of money outside the Court that is a not a normal prosecutorial act and I think that is subject to proof.

Byron R. White:

If someone else pays the prosecutor to bring the prosecution and the prosecutor says well have to give me some testimony too.

So he is paid to bring the prosecution and he carries it out in the courtroom giving what he knows is absolutely false testimony, again, absolute immunity?

John P. Farrell:

He is immune as to the presentation, the production of the testimony of trial and I think that is —

Byron R. White:

How about the taking of money?

John P. Farrell:

Well, if the taking of the money could be proved there is a separate act.

I think it does not fall within the —

Byron R. White:

Taking the money resulted in his bringing the prosecution resulted in damages?

John P. Farrell:

Well, you might be able to prove up some damages from that, but I think the act would be the violation, that would not be immune would be an act that was not within the normal scope of the prosecutor’s function disregarding allegations of motive.

So that is the test.

Is that act normal or not normal?

John P. Farrell:

Yes and I think normally, a prosecutor for instance files an information or whatever in that jurisdiction.

He files an information, he goes to court.

He solicits testimony.

He makes a closing argument.

He files reports to the clemency boards.

He participates on appeals.

He argues on appeals.

As for those acts and those acts he is acting within a quasi-judicial capacity and if you allege that he did those improperly.

He did it criminally.

He did it maliciously as to those acts he is immune.

Now, if you can say well on his way here, he took a witness and beat him up to keep him from coming, the act of beating up a witness does not prima facie appear to be a prosecutorial act, that is not what prosecutors normally do.

(Inaudible)

John P. Farrell:

As to the delivery of the money and the acceptance of money, yes, that is not within the normal scope of it.

Byron R. White:

Suppose (Voice Overlap) somebody damage, he will not be liable?

John P. Farrell:

If you could prove up to that, you might well be able to prove that.

Harry A. Blackmun:

By proving that, do I get to be put to jail by that witness?

John P. Farrell:

Well, it is quite different because it is very easy.

At the end of any trial there is nothing easier than saying the prosecutor maliciously misstated the fact and in this case that is the exact sort of things we have.

William J. Brennan, Jr.:

Mr. Farrell, I am curious.

All of the briefs including the amicus briefs cite any number or federal court decisions largely of course appeal, that address this question of prosecutorial immunity on the 1983, but none of you seems to accept one of them and cites in arguing the case, refers to any state cases that deal with this?

John P. Farrell:

The state cases are largely the same.

I cannot say for every state, but in my own research I went to the Federal cases because of the civil rights action.

William J. Brennan, Jr.:

But there have been some decisions of state courts that 1983 actions are maintainable in state courts?

John P. Farrell:

Yes, they are so far —

William J. Brennan, Jr.:

But do you not think it might be helpful to us to have a survey of what the state decisions are on the subject?

John P. Farrell:

Well, of course the state –- this of course is still in the state of flux, but the state courts are following federal law in 1983 actions in the state courts, at least in California, but as to the state law in California if you are quite confident —

William J. Brennan, Jr.:

What is the state law generally, do you know?

I know there are couple of citations to Pierson.

John P. Farrell:

I think it is the same.

Well, Pierson was on the defamation immunity.

I think in general it is clear that the state law is the same as the Circuit Court of Appeals.

William J. Brennan, Jr.:

Generally, you do not cite anything to support it, do you?

John P. Farrell:

No, but I think if you looked into the matter you would find it would be very much like —

William J. Brennan, Jr.:

Why should you help us find it, you are referring this to us and having us look at it?

John P. Farrell:

Yes, I think, in Proser we are on the defamation immunity and cited the law of England as well and the reason I want it —

William J. Brennan, Jr.:

Yes, I notice a number of these cases cited?

John P. Farrell:

I want to correlate it.

William J. Brennan, Jr.:

I would be interested in what is happening in Illinois, in New York, in New Jersey and other places like that?

John P. Farrell:

The reason I wanted to correlate the defamation immunity with this and judicial immunity and legislative immunity is alleged — the rule in this Court has been that immunity under 1983 is really a question of statutory construction and the statutory construction has always proceeded from the fact that what the immunity was at common law applies under 1983.

So this court found that under the common law, there was absolute judicial immunity and applied it under 1983.

The same thing with legislative immunity.

As to executive immunity, for instance, peace officers found that at the common law peace officers when he had a defense in good faith and reasonable cause and apply at that under 1983 and the same is true with Scheuer versus Rhodes and the Strickland case.

All of them cited common law tradition.

Well in this case, I think the Court of Appeals decisions which are overwhelmingly perhaps eluding it, have in fact studied and they themselves cite a lot of state cases, the earlier ones in particular.

I think Yaselli versus Goff is probably the best of this entire string of decisions and —

William J. Brennan, Jr.:

What circuit was that?

John P. Farrell:

Yaselli versus Goff —

William J. Brennan, Jr.:

Yes.

John P. Farrell:

— which is the earliest case and it itself relates defamation immunity and the reason why defamation immunity is also important is defamation immunity intends to allow a counsel in the presentation of this case to be free from worrying about civil liability as to himself personally.

So it is defending the act of asking questions and presenting evidence at trial.

Now, if you are going to turn around say 1983 though allows against state prosecutors, suits for the questions they asked and the evidence they present at trial, then you have undercut the defamation immunity.

The only thing you cannot be sued for is defamation.

So if you are private counsel, you are home free and clear basically because there is no other cause of action lying against you, but if you are a state official, unhappily, you will be subject to suits for everything you say or present at trial which means you cannot argue a trial without worrying about the fear of suit and I think this case is a good case.

Factually it was an 8-day trial and the type of things Judge Ferguson found that we are so terrible that Mr. Pachtman did were things where there was a statement that the witness said he voluntarily committed himself to a mental institution and this was discussed by the California Supreme Court in 1962 at appendix page 12.

Warren E. Burger:

You are speaking now of the witness whose testimony is alleged to have been presented improperly?

John P. Farrell:

Right and this is just an example.

The question of whether he was voluntarily or involuntarily committed.

That is discussed at both page 12 and page 22, footnote 3 and the California Supreme Court concluded at the trial, however, because Costello apparently only meant that he voluntarily pleaded not guilty by reason of insanity and in fact that is what he says.

Now, this is an eight-day trial and the prosecution is supposed to pick up on the word voluntarily.

Mr. Hanson, I am sure in good faith forgot that these particular provisions were in here when he said that the mental capacity was not discussed by the California Court.

It is easy to make a mistake in a half an hour argument on facts.

Here is the prosecutor, on a 1961 trial going to pick on questions like this and other claim by Judge Ferguson is that Costello said he had not seen mug shots, but had seen a mug book of the Imbler before he identified him at the line up and he admitted he had seen 12 pictures including Imbler’s in a mug book.

Judge Ferguson said that was not a mug, therefore, he falsely testified he had not seen mug shots, although he admitted in the same line of questioning that he had seen a mug book.

Now, these are the type of nitpicking questions in an eight-day trial that can be brought up in the civil case and called knowing use a false testimony.

Thurgood Marshall:

Do you think that nitpicking as to whether man voluntarily put himself in an insane asylum or already he was thrown in, is that not nitpicking?

John P. Farrell:

It came as the credibility.

He said he was —

Thurgood Marshall:

What I am saying is you get into the mugs and I did not know the mugs were for photos?

John P. Farrell:

Well, I think —

Thurgood Marshall:

Are they?

John P. Farrell:

Well, I brought this up as an example.

Thurgood Marshall:

Are they or are you going to give up your absolute immunity?

John P. Farrell:

No, I do not want to give up the absolute immunity.

What I was saying is this is the type of thing that prosecutors will be exposed to.

The person testified as set out in page 23 that I entered a plea of not guilty by reason of insanity and which caused me to be committed.

Thurgood Marshall:

This case would not open that up.

This case would be limited as I see the facts, a fact where a federal district court has held an habeas corpus, does do and the Court of Appeal affirmed and this Court has denied certiorari?

John P. Farrell:

I would like to then respond to that.

Thurgood Marshall:

Could be limited to that?

John P. Farrell:

I do not think that could be — from our point of view, in general, say as county counsel I am sure we would prefer that in a wide open attack on prosecutors.

Thurgood Marshall:

You understood (Voice Overlap) are you not?

John P. Farrell:

But —

Thurgood Marshall:

Is that not what the county really emphasizes today?

John P. Farrell:

Well the county would not, is prohibited from paying punitives and there is a million and a half dollars in punitive damages sought.

Thurgood Marshall:

The County would have some money to pay?

John P. Farrell:

The compensatory damage might well be paid by the county that is a question that is being decided by this Horvath case which is before the California Supreme Court.

It might or might not.

To this point the county is taken the position and paid compensatory damages in federal civil rights act.

So unless the California Supreme Court ruled otherwise, compensatory damages would be paid, but at for the habeas corpus it is an irrational determinant because first of all people acquitted will not have a chance to have a habeas corpus decision.

Secondly, Mr. Pachtman was not represented at the habeas corpus hearing, only the attorney general was there.

We would be the civil attorneys.

Thurgood Marshall:

Was he there?

John P. Farrell:

No, he was not even there.

He had testified at the reference hearing in 1963.

He did not even know this was going on.

He was not there.

That is clear.

Thurgood Marshall:

He did not know the habeas was going on?

John P. Farrell:

He would not normally know.

Thurgood Marshall:

The state could tell him, could they not?

John P. Farrell:

Well, they might but —

Thurgood Marshall:

They might?

John P. Farrell:

Within the bureaucracy it would not be necessary because Mr. Imbler was in the custody of the warden.

When he is in the custody of the warden, the response is made by the attorney general and so there is no reason for either the district attorney to be there or the county counsel who is the civil attorney for the district attorneys, but if this —

Thurgood Marshall:

Are you telling me that the attorney general could not get in touch with the office?

John P. Farrell:

No, they would not normally do so.

Thurgood Marshall:

They would not normally get in touch with the office that prosecuted the case?

John P. Farrell:

Well, they would not get in touch with county counsel, definitely.

Thurgood Marshall:

No, I am talking about the committee prosecutor’s office, the office that prosecuted the man?

John P. Farrell:

They might or might not.

I do not know.

I could not honestly respond to whether it is normal or not, but there are 500 deputy district attorneys in the county of Los Angeles and there are about 500 deputy attorney generals in the State of California and I know from habeas corpus that we do not get in touch unless we feel we have to.

There is just so much volume of matters coming into that that if we go over there in the matter, we do not get in touch with them until some time later on.

So I do not know whether they did or not, but in fact he was not present.

John P. Farrell:

He was not a witness and was not present at the habeas corpus hearing, but think of the impact on the writ of habeas corpus.

I think we are weighing here an enormous impact we will have on the process of criminal justice against a private claim for monetary compensation and if habeas corpus hearings are going to decide the right to monetary compensation, I think it would be only reasonable to assume greater interest in habeas corpus hearing by the civil attorneys with the people who are going to be represented there.

I have no doubt that the county counsel for instance would want to start being present and the city attorney would want to start being present and sometimes that might be to the good, but it certainly could slow up the habeas corpus writ which has been the purpose of habeas corpus has been to decide lawful custody.

We would then be converting the writ to decide lawful custody into a precondition for a civil suit and you cannot do that without having a ramification from the civil lawyers coming in and I think that plus the fact that people will not have that benefit at all who would tend to eliminate the writ of habeas corpus as a proper terminate for civil liability.

William J. Brennan, Jr.:

Mr. Farrell, only damages are requested here?

John P. Farrell:

Yes.

William J. Brennan, Jr.:

Suppose that declaratory and injunctive reliefs are requested, is your theory of immunity still the same?

John P. Farrell:

No, it is not.

Certainly, under the civil rights act, while he was in custody, it would be probably improper under Perez versus Rodriguez, it would a writ of habeas corpus.

Now, that he is out I do not know what injunctive and declaratory relief might lie as two.

That would be the only question, but I think, for instance, prior to the trial, you would have a pending prosecution and you would have Younger versus Harris ,if there were something that declaratory and injunctive relief could at this time, correct, I think it would lie.

I dubious that there are grounds for equitable jurisdiction though and I think that would be the problem with declaratory and injunctive relief.

But no, this is an historic common law immunity as to damages and as other forms of redress that still open to the person.

He can still get his usual remedy for criminal prosecution.

The district attorney certainly is under severe restrictions, for instance, by the trial judge, jury instructions, mistrial granted and the difference, what characterizes the difference between this and the executive say in Scheuer versus Rhodes is basically the Sixth Amendment.

And that is the distinction that what the prosecutor does in presenting cases at trial is subject to all the restraints of the Sixth amendment.

There is an adversary there.

There is an impartial judge, there is an impartial jury.

There is a public trial.

It is all taking place in public.

He is subject to public censure.

So the Sixth Amendment characterizes the difference between a prosecutorial act and an executive act.

Potter Stewart:

What provision in the Sixth Amendment are you talking about?

John P. Farrell:

Well, the right to counsel.

What he does at trial, why it is different in one executive does and the adversary is sitting right there.

Potter Stewart:

The prosecutor is an executive.

There is no gain in saying that?

John P. Farrell:

He is executive —

Potter Stewart:

Or the executive branch?

John P. Farrell:

He is an Executive in one form or another.

John P. Farrell:

In California, he is an independently elected officer.

He is not appointed by the governor or the Attorney General or the District Attorney.

So he is an independent executive officer who basically does anything, but judicial matters.

So he is not executive in the sense you response to an executive power directly, but what he does is done in public.

Potter Stewart:

Does the Attorney General of California have any power or jurisdiction over the local prosecutor?

John P. Farrell:

Yes, he supervises district attorneys under the California constitution and he can prosecute them and if there is a conflict he can come in and he is to enforce the law against them as well and the grand jury is to enforce the law against him, but what the prosecutor does in the courtroom, what he does and indicts his subject to the constant review with the court do to the Sixth Amendment.

He has an adversary and that is I think the great distinction.

Well, thank you very much.

Potter Stewart:

You said that — you started to say earlier that the quasi-judicial has two meanings.

You never were able to elaborate or finish that because I think you were interrupted?

John P. Farrell:

Yes, what I was —

Potter Stewart:

Can you tell us what your concept was at the first meeting, a first meeting somebody like a magistrate or somebody, at least at that time performs what seem to be judicial functions and duties?

John P. Farrell:

Right.

Potter Stewart:

That is the first one.

John P. Farrell:

The first emphasis is on the discretion which is similar to a judge and the second meaning is when the person closely identified and subject to the control of the judge and quasi-judicial immunity, for instance, has been given to marshals and sheriffs and clerks carrying out the orders of the court where there is no great discretion but it is identified with the judicial process.

Potter Stewart:

Supporting personnel in the courtroom?

John P. Farrell:

Supporting personnel and people are acting under their control and I think I was trying to say what District Attorney is both exercising the discretion which is similar to a judge and he is there when he is arguing a case, when he is presenting evidence to the court is subject to the constant control of the court, and so he falls under both ends of quasi-judicial definition.

Warren E. Burger:

Very well.

Mr. Solicitor General.

Robert H. Bork:

Mr. Chief Justice and may it please the Court.

United States is interested in this case because the outcome of it will quite likely affect the scope of the immunity for Federal prosecutors and may in some sense control it.

I think the main points have been well canvassed by counsel.

The problem of harassment that may occur to a prosecutor I think is illustrated in some ways by this case because we have seven judges in the California Supreme Court who thought the conduct here did not deny the petitioner his constitutional rights and we have two Federal Courts who thought it did and I think it is fair to say that when judges differ that substantially about the nature of this conduct and what it did to petitioner’s rights.

It is fair to say that nobody can be confident of the outcome of the jury case.

Warren E. Burger:

That goes to the merits, however, does it not, Mr. Solicitor General?

Robert H. Bork:

Well, I was not going to the merits in the sense Mr. Chief Justice that I meant to imply that either court was right or wrong.

I have been merely illustrating the degree of uncertainty that exists in all of these kinds of cases.

Warren E. Burger:

That does not go to the main issue of the risk of harassment of prosecutors in the diversion of their time from their basic function?

Robert H. Bork:

I meant to go that point Mr. Chief Justice because I think —

William J. Brennan, Jr.:

Mr. Solicitor General, there has always been attention between state courts, I can say from personal experience in federal habeas corpus?

Robert H. Bork:

I am sure there is.

William J. Brennan, Jr.:

There is nothing new about that.

Robert H. Bork:

No, no.

William J. Brennan, Jr.:

I suggest on the issue that we are dealing with today.

I do not see that an attention helps us as well?

Robert H. Bork:

Well, in that case I will not pursue the point.

I was trying to put it somewhat differently, but it is not what my main point, in any event I will pass it.

What I would like to discuss is the conceptual framework of the absolute immunity and the qualified immunity and why I think this particular process requires an absolute immunity.

Petitioner’s counsel objected to this being called a quasi-judicial immunity because the prosecutor is an executive branch officer, but I think there is no anomaly there.

The categorization does not come from the equation of which branch of government you are employed by.

It comes from the process in which you are engaged, the nature of the process in which one is engaged.

This happens to be executive branch employee who is intimately involved in a judicial process and it is the appropriate immunity for — is shaped by the needs of the process and I think that is why this is called the quasi-judicial immunity and that is why that absolute immunity which adheres to judges has properly been held to adhere to prosecutors in Yaselli against Goff.

Thurgood Marshall:

At the actual trial of the case, I still have not got it clear in my mind the difference between the prosecutor and defense counsel as to who is a quasi-judicial officer.

This is during the trial in asking questions?

Robert H. Bork:

I do not see Mr. Justice Marshall that should a defense counsel suborn in perjury that he would be liable to anyone in a damage action.

Thurgood Marshall:

Well, I mean is he a quasi-judicial officer?

Robert H. Bork:

I assume he is.

Thurgood Marshall:

What?

Robert H. Bork:

I assume he is.

Thurgood Marshall:

So there is no difference.

He also is a quasi judicial officer?

Robert H. Bork:

I think the people engaged in this process are –- Pardon me.

(Inaudible)

Robert H. Bork:

I believe so.

William H. Rehnquist:

Is the privately retained defense counsel an agent of the state for purposes of 1983?.

Robert H. Bork:

Oh! No, no.

The question was in general.

Can the defense counsel be regarded as performing a quasi-judicial function and within the terminology which we are using now, I think the answer is yes, now of course there would be not state action.

Potter Stewart:

That is right.

Robert H. Bork:

Under the 1983.

Potter Stewart:

Unless he was a public defender, publicly paid?

Robert H. Bork:

Something of that sort.

We are saying that this nature of the process defines the immunity of the judge and of the prosecutor and indeed that the prosecutor’s immunity is symmetrical with the judge’s immunity.

Warren E. Burger:

Even if we say that the public defender is paid by the public, are you sure that that makes that state action in light of your definition that it is not the category or class in which we put in the function that he performs?

Robert H. Bork:

I am not sure it is state action Mr. Chief Justice.

I had not addressed the question of the state action of a public defender.

Warren E. Burger:

Then you do not need to worry about the defense counsel here in this case?

Robert H. Bork:

No, we do not have to worry about them.

It is merely a question whether this idea of quasi-judicial aspect covered defense counsel as well, I think as a general concept it does, but I think that is nothing do with this case and the point I wish to make here is that I think the immunity which a prosecutor has is symmetrical with that which the judge has because they are both essential to the judicial process.

Warren E. Burger:

We will resume there at 1 o’clock Mr. Solicitor General.

[Lunch Break]

Mr. Solicitor General, you may continue.

Robert H. Bork:

Mr. Chief Justice and may it please the Court.

I ended on the note that the immunity was defined by the process and for that reason that the prosecutor’s immunity was appropriate of the same size as the judge’s immunity and that would mean that a case parallel to this would be the case of a judge who was reversed for misconduct of the trial during which he had denied a litigant his constitutional rights.

I take it that Pierson against Ray and Yaselli against Goff — Pierson against Ray means that that judgment nevertheless would have absolute immunity.

Potter Stewart:

The analog would be a judge who had done so deliberately and intentionally and knowingly?

Robert H. Bork:

Yes, Mr. Justice Stewart that is correct.

The judge would —

Potter Stewart:

Not just because of ignorance?

Robert H. Bork:

No, with malice.

We also have indicted judges from time to time and so that would be analog to this case and I think if that judge would have an absolute immunity as indeed I think he would from a damage suit I think so a prosecutor should, then I think the perception or the difference is between the governor’s decision making range and what is at stake here is what the counsel difference between this case and Pierson against Ray and the case of Scheuer against Rhodes and the greatest difference which I think —

Harry A. Blackmun:

Mr. Solicitor General I gather that the question I put to Mr. (Inaudible) a judge himself a decision would have the absolute immunity, would he not?

Robert H. Bork:

From the damage suit I believe yes so.

Harry A. Blackmun:

Yes, I mean from the damage suit.

Do you agree with him that perhaps one prosecutor who bribes the witness, would not?

Robert H. Bork:

No, I do not think I would be willing to say that —

Harry A. Blackmun:

That carries the absolute immunity even to that prosecutor?

Robert H. Bork:

A great deal of what prosecutor does, it is done outside of the courtroom and I do not really see that in the performance of his prosecutorial function that makes that much difference whether he happens to be standing on the hall or in his office or in the courtroom.

Byron R. White:

Of course, Mr. Solicitor General the decision the Court affirmed in Goff v. Yaselli would affirm the judgment of the Court of Appeals and saw no difference between judges and other executive officers?

Robert H. Bork:

Well, there may be.

Robert H. Bork:

There has been a doctrine of absolute immunity for other executive officers.

Byron R. White:

Which the Court of Appeals in Yaselli has found?

Robert H. Bork:

Yes.

But I think that Scheuer indicates and Wood against Strickland indicates some difference and I am suggesting for executive officers at least in the state context and I am suggesting that difference between that case in Pierson against Ray or Yaselli against Goff is justified by the difference in the process and one of those differences as is, as we said in the Scheuer opinion, I am quoting from Mr. Chief Justice Hughes that where they not judicial review in the damage suit, there would be no way to test the governor’s performance in a courtroom and defy another state governor would be the constitution and not the constitution by the Supreme Law.

That is not true here.

A prosecutor’s behavior is testable in the courtroom before the jury, it is testable on appeal, it is testable on collateral attack and indeed it is testable ultimately if one gets to that stage upon a petition for commutation of sentence or pardon.

William H. Rehnquist:

Are you familiar with the Ninth Circuit’s holding in Ronan against Robichaud?

Robert H. Bork:

I do not believe I am Mr. Justice Rehnquist.

William H. Rehnquist:

Well, that was a case where the prosecutor had apparently collaborator, who was alleged he collaborated kind of third degree methods in interrogating a witness, would you extend absolute immunity that far?

Robert H. Bork:

There are cases that I think we need not reach for purposes of this case in which a prosecutor does what is regarded as essentially a police function, as in directing a raid or interrogating a witness and it is possible to draw that line.

I would be hesitant to draw it very easily because the connection between what he is going to do in the courtroom and what he does outside the courtroom is so close.

There may be cases in which that line can be drawn.

William J. Brennan, Jr.:

That is so called an investigative function, is it not?

Robert H. Bork:

That is true.

William J. Brennan, Jr.:

And at least three circuits have thought there was a distinction?

Robert H. Bork:

And there may be.

I do not think we need to address that distinction for the purposes of today’s case.

Potter Stewart:

And do they, do those decisions say that he then has the immunity of a policeman or he has no immunity at all?

Robert H. Bork:

I think it becomes a qualified immunity I believe.

Potter Stewart:

The immunity of a policeman if he is acting like a policeman?

Robert H. Bork:

Yes, Mr. Justice Stewart.

Potter Stewart:

That is what the cases say?

I believe so.

But the one thing I want to stress here is that in this case, unlike the case of a governor or school official, the prosecutor’s action is subject to repeated review and repeated collateral attack which would not be true if the governor in Scheuer against Rhodes, will not be true if the school officials in Wood against Strickland were not for their not having absolute immunity.

It has been mentioned that besides the other safeguards for the defendant, there are sanctions available against a prosecutor which are not available against the governor such as —

Byron R. White:

What happens to executive officer who directs a prosecutor to prosecute?

Robert H. Bork:

Well, it is the executive.

I mean, a governor who directs an executive officer?

Byron R. White:

Yes.

Robert H. Bork:

To prosecute that would be somewhat difficult case because at that point the governor I take it is exercising his function to make sure the laws are executed in the sense.

Byron R. White:

He is acting like the prosecutor?

Robert H. Bork:

He is acting like a prosecutor.

Byron R. White:

Rather than the prosecutor is acting like a governor?

Robert H. Bork:

That I think is true, but we are talking about a governor calling out the National Guard.

We are talking about the situation in which there is no way to get judicial review of that action, if there is not a 1983 suit available.

Warren E. Burger:

Is it not true that in most of the states, neither the Governor of the State nor the Attorney General has any final control over the actions of a prosecutor?

Robert H. Bork:

That is I believe true (Voice Overlap)

Warren E. Burger:

MThe Governor can remove or suspend the prosecutor temporarily for clause, but overwhelmingly the prosecutor elected in a particular jurisdiction is autonomous.

Is that not so?

Robert H. Bork:

I think that is quite true Mr. Chief Justice.

It may be that my answer to Mr. Justice White was somewhat tempered by my knowledge that the Attorney General can direct prosecution.

Warren E. Burger:

In the federal —

Robert H. Bork:

In the federal system and our interest is of course in the federal system.

Byron R. White:

And even if they can, it often happens in the states they nevertheless listen?

Robert H. Bork:

That may, will be.

I am not that familiar with state.

It is a matter of technicality?

Robert H. Bork:

But I think also it is true that judicial process that we are trying to protect with this kind of immunity is a more vulnerable process.

It is quite true that prosecutors have to bring many cases and they have antipathy from many defendants and there are categories of defendants who if they were able to sue would do their best to bring the process to a halt or at least the damage of the process by bringing actions.

William J. Brennan, Jr.:

Solicitor General, I know that your brief has given us a rather comprehensive review of all the Federal Court decisions addressed in this question, but you made no reference to lower or any state court decisions, is there any reason for that?

Robert H. Bork:

No, we did not Justice Brennan because we think at least as to the federal prosecutor’s immunity it is governed by federal law.

Now, perhaps I do not know if these gentlemen wish to file the brief, I thought you were asking about this morning.

William J. Brennan, Jr.:

Well, it is a good deal of state law?

Robert H. Bork:

Well, shall I ask this gentlemen if they —

William J. Brennan, Jr.:

(Inaudible)

Potter Stewart:

The state decisions would be construing 1983.

The only reason we have this case is because it involves a federal question of the construction of a federal statute?

Robert H. Bork:

I think Mr. Justice Brennan is interested more than 1983.

He is interested in —

William J. Brennan, Jr.:

I am familiar with it.

Potter Stewart:

Well, any state can do whatever he wants about this it is a matter of its own State Tort Law?

Robert H. Bork:

That is true, I think —

Byron R. White:

Pierson against Ray and those cases called on the historic privilege under common law?

Robert H. Bork:

That is true.

Potter Stewart:

It is true in 1983?

Robert H. Bork:

But we have —

Byron R. White:

Yes, but so the question is that — that may be common law may be of some relevance in the various states?

William J. Brennan, Jr.:

Do not let me hold?

Robert H. Bork:

Alright I think.

(Voice Overlap) It should also be noted that the prosecutor has to establish his case beyond a reasonable doubt to unanimous jury.

Should he be reversed on appeal for having done something or be attacked collaterally, he will be sued under a standard by which a majority of the jury may hold him liable on the preponderance of the evidence.

I think that is bound to have a deterred effect as the prosecutor decides whether or not to go forward with the case.

And finally, I think it may be worth noting that I think it is true that some courts would be a little loathe in a close case to decide if the defendant had been denied his constitutional rights by a prosecutor if that court knew that by doing so he was exposing the prosecutor to a lawsuit for damages.

It is not all clear that removing the absolute immunity would help the defendants.

It might in fact hurt some defendants on their habeas corpus proceedings.

In any event for these reasons we think the absolute immunity which a court has, a judge has, and a juror has properly belongs to a prosecutor as well.

There are other sanctions, other safeguards in the judicial process not available elsewhere and for that reason we thank the judgment of the Court of Appeals should be affirmed.

Warren E. Burger:

Thank you Mr. Solicitor General.

Thank you gentlemen.

The case is submitted.