     08-0947-cv
     Warney v. Monroe County



 1                       UNITED STATES COURT OF APPEALS
 2
 3                             FOR THE SECOND CIRCUIT
 4
 5                               August Term, 2008
 6
 7   (Argued: June 1, 2009                   Decided: November 13, 2009)
 8
 9                               Docket No. 08-0947
10
11   - - - - - - - - - - - - - - - - - - - - -x
12
13   DOUGLAS WARNEY,
14
15                     Plaintiff-Appellee,
16
17               - v.-
18
19   MONROE COUNTY, LARRY BERNSTEIN, in his
20   individual capacity, WENDY EVANS LEHMAN, in
21   her individual capacity and MICHAEL C.
22   GREEN, in his individual and official
23   capacities,
24
25                     Defendants-Appellants,
26
27   CITY OF ROCHESTER, SANDRA ADAMS, in her
28   individual capacity, EVELYN BEAUDRAULT, in
29   her individual capacity, STEPHEN EDGETT, in
30   his individual capacity, THOMAS JONES, in
31   his individual capacity, ROBERT GARLAND, in
32   his individual capacity, JOHN GROPP, in his
33   individual capacity, JOHN DOE OFFICERS
34   AND/OR DETECTIVES # 1-10, in their
35   individual capacities and RICHARD ROE
36   SUPERVISORS # 1-10, in their individual
37   capacities,
38
39                     Defendants.
40
41   - - - - - - - - - - - - - - - - - - - - -x
42
1        Before:        JACOBS, Chief Judge, NEWMAN and POOLER,
2                       Circuit Judges.
3
4        Appeal by prosecutors from denial of their motion for

5    absolute or qualified immunity by the United States District

6    Court for the Western District of New York (Larimer, J.) in

7    a suit alleging that the exculpatory result of post-trial

8    DNA testing, conducted by the district attorney’s office

9    while defending habeas and other initiatives, was not timely

10   disclosed to plaintiff Douglas Warney, who was in jail for a

11   murder that the DNA testing ultimately showed he did not

12   commit.   Because the testing was undertaken in connection

13   with post-trial proceedings and was therefore integral to

14   the advocacy function, we hold that the prosecutors enjoy

15   absolute immunity under Imbler v. Pachtman, 424 U.S. 409,

16   430–31 (1976).   Reversed.

17

18                                MICHAEL E. DAVIS, Second Deputy
19                                County Attorney, for DANIEL M.
20                                De LAUS, JR., Monroe County
21                                Attorney, Rochester, NY, for
22                                Defendants-Appellants.
23
24                                DEBORAH L. CORNWALL, (Peter J.
25                                Neufeld, Sarah Crowley, on the
26                                brief), Cochran Neufeld &
27                                Scheck, LLP, New York, NY, for
28                                Plaintiff-Appellee.
29
30                                Steven A. Bender and Anthony J.

                                   2
 1                                 Servino, for Daniel M. Donovan,
 2                                 President of the District
 3                                 Attorneys Association of New
 4                                 York State, for amicus
 5                                 curiae District Attorneys
 6                                 Association of New York State,
 7                                 in support of Defendants-
 8                                 Appellants.
 9
10
11   DENNIS JACOBS, Chief Judge:
12
13       Three prosecutors of Monroe County appeal from denial

14   of their motion for absolute or qualified immunity by the

15   United States District Court for the Western District of New

16   York (Larimer, J.) in a suit alleging that the exculpatory

17   result of post-trial DNA testing, conducted by the district

18   attorney’s office while defending habeas and other

19   initiatives, was not timely disclosed to plaintiff, who was

20   in jail for a murder that the DNA testing ultimately showed

21   he did not commit.   Because the testing was undertaken in

22   connection with post-trial proceedings and was therefore

23   integral to the advocacy function, we hold that the

24   prosecutors enjoy absolute immunity under Imbler v.

25   Pachtman, 424 U.S. 409, 430–31 (1976).

26       Plaintiff Douglas Warney was wrongfully convicted and

27   jailed for ten years.   He sues a number of individuals (and

28   government entities) for violating his constitutional


                                    3
1    rights.    This appeal considers only issues bearing upon the

2    liability and immunity of three Monroe County prosecutors

3    for failing to disclose exculpatory DNA test results

4    promptly.

5        After Warney’s conviction, during the pendency of his

6    federal habeas corpus petition and his appeal from a state-

7    court decision denying him access to DNA evidence, the

8    Monroe County District Attorney’s office arranged the DNA

9    testing of crime scene evidence.    The results showed that

10   all non-victim blood samples collected at the scene of the

11   crime were from one man, who was not Warney.    Using the DNA

12   results, the prosecutors identified the man who actually

13   committed the murder, advised Warney’s counsel, interviewed

14   the new suspect to confirm that Warney was not involved, and

15   then achieved Warney’s exoneration.    Warney alleges that his

16   constitutional rights were violated because at least 72 days

17   elapsed between the date the prosecutors learned of the DNA

18   test results and the date they informed Warney or his

19   counsel.

20       This appeal requires us to consider the scope of

21   absolute prosecutorial immunity in the post-conviction

22   context.


                                    4
1

2                               BACKGROUND

3        We set out only the facts that bear upon the

4    disposition of this appeal.    Since this is an interlocutory

5    appeal from the denial of a motion to dismiss, we accept as

6    true all well-pled factual allegations, and draw all

7    reasonable inferences in the plaintiff’s favor.     See

8    Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell

9    Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

10       A.   The Murder.   In January 1996, William Beason was

11   found dead in his ransacked apartment on Chili Avenue in

12   Rochester, New York by officers of the Rochester Police

13   Department (“RPD”).    In Beason’s bathroom, they found a

14   bloodstained knife, a bloody towel, and a bloody tissue.

15   The RPD lifted several fingerprints from two pornographic

16   videotape boxes found in the bedroom, and one partial print

17   from the knife.   The autopsy showed nineteen stab wounds to

18   Beason’s neck and chest, all of them consistent with the

19   bloody knife found in the bathroom, and defensive wounds on

20   Beason’s left hand.    Blood evidence was collected from his

21   fingernails.   Thus it appeared that Beason died after a

22   violent struggle, and that the perpetrator was cut and had


                                    5
1    gone into the bathroom to clean blood off himself with the

2    towel and the tissue.

3        After Beason’s murder was reported in the press,

4    Douglas Warney called the RPD “Crimestoppers hotline” and

5    referenced the murder.    Warney had an IQ of 68, an eighth-

6    grade education, and full-blown AIDS.    (Complaint ¶ 37.)     It

7    is not clear what Warney said, but he alleges that he said

8    that he “knew of” Beason.1   An RPD officer went to Warney’s

9    apartment to speak to him.    The complaint alleges that the

10   RPD was aware that Warney had made numerous crank calls to

11   the police (for which he had received psychiatric

12   assistance), and this officer in particular had responded to

13   Warney’s complaints about drug activity in his apartment

14   building.   (Id. ¶ 39.)   Warney told this officer that he was

15   concerned about his name being brought up in connection with

16   the murder of a “William” on Chili Avenue.

17       Two days later, RPD detectives picked up Warney at his

18   apartment and brought him to the police station.    They put

19   him in a small office and interrogated him, using



          1
             Beason and Warney had a “passing acquaintance.”
     (Complaint ¶¶ 37–38.) On occasion, Beason had hired Warney
     to clean his house and shovel snow from his driveway. (Id.)


                                    6
1    “escalating coercive tactics” including verbal abuse, and

2    physical and other threats, “in order to force him to admit

3    that he committed the murder.”        (Id. ¶ 47.)    After initial

4    denials, Warney eventually “yielded to [the] coercive

5    tactics and provided at least four wildly different versions

6    of events to the police.”       (Id. ¶¶ 50-51.)2

7            In an ensuing typewritten “confession,” the detectives

8    included numerous non-public facts about the murder known

9    only to the police and the real killer, facts which (it is

10   now known) Warney could not possibly have known.          (Id. ¶

11   52.)3       According to the complaint, there were


             2
             In the first version, Warney implicated his cousin.
     In the second, Warney added that he and his cousin went
     together to Beason’s home. In the third, Warney and his
     cousin together stabbed Beason. In the fourth, reflected in
     the typewritten statement, his cousin was no longer present,
     and Warney confessed to murdering Beason alone. (Complaint
     ¶ 51.)
             3
             These facts included: (1) Beason was cooking
     barbeque chicken and mashed potatoes at the time he was
     killed; (2) Beason was wearing a red and white striped
     nightshirt; (3) Beason was stabbed more than fifteen times
     with a twelve-inch serrated knife; (4) Beason’s throat was
     slit; (5) Beason’s body was found on his bed and his eyes
     were open; (6) the assailant cut himself and bled in the
     apartment; (7) the assailant wiped his wound with tissue
     paper, which he discarded in the toilet; (8) the assailant
     put intensive care lotion on his wound; and (9) the back
     door and basement door were locked and the front door of the
     house locks automatically. (Complaint ¶ 53.) The complaint
     alleges that the detectives “deliberately failed to disclose
                                       7
1   “inconsistencies” in Warney’s statement that rendered it

2   wholly implausible.4

3       Warney signed the confession and initialed minor

4   changes less than four hours after he had been picked up.5

5   According to the complaint, after Warney’s “confession” the

6   police performed no further investigation other than trying

7   to determine whether Warney’s cousin could have been an

8   accomplice.   Notably, the latent fingerprint collected from

9   a pornographic videotape box was not run through the




    to the prosecutor and to defense counsel the material
    exculpatory fact that they fed the non-public details of the
    crime to Mr. Warney.” (Id. ¶ 67.)
         4
            The inconsistencies are that: (1) Warney’s
    confession says that he killed Beason downstairs, and
    dragged him up to the bedroom; (2) Warney’s statement said
    he drove his brother’s Chevrolet to Beason’s house, even
    though Warney’s brother does not own a car; and (3) Warney’s
    hands had no cuts or bruises, even though his confession
    says he got cut and bled at the scene. (Complaint ¶ 62.)
         5
            At 5:30 p.m., the detectives took Warney to the
    “Public Safety Building,” and placed him in a secured
    interview room to “elicit further false confessions and
    corroborate the [initial] falsified confession.” (Complaint
    ¶ 57.) In this second “confession,” Warney was said to have
    volunteered another detail mentioned in the crime scene
    reports–-that pornographic video tapes featuring a white
    male and Hispanic male were found in Beason’s bedroom--and
    that he and Beason had watched the tape together before the
    murder. (Id. ¶ 58.)
                                  8
1    statewide database.6    (Id. ¶ 63.)

2        B.     The Trial.   Certain blood evidence at the scene was

3    found to exclude both Warney and Beason; so Warney was

4    charged both as a principal and an accomplice.     At trial,

5    however, the prosecution’s only theory was that Warney

6    committed the murder alone, and the prosecution’s case

7    rested “almost exclusively” on Warney’s confession.

8    (Complaint ¶¶ 79-80.)

9        At trial, a chemist testified that the blood on the

10   murder weapon was consistent with the victim’s Type O, but

11   inconsistent with Warney’s Type A; and the bloodstains on

12   the towel and tissue belonged neither to Beason nor Warney.

13   (It fit neither of their “enzyme types.”) (Complaint ¶ 74.)

14   Of three latent prints from the pornographic videotape

15   boxes, two belonged to Beason, and the third was

16   unidentified, meaning it belonged to neither Beason nor

17   Warney.7   A second fingerprint specialist examined a partial

18   print from the murder weapon, and found only “three points


          6
            If the fingerprint had been run, as it later was, it
     would have matched a man named Eldred Johnson. Johnson’s
     fingerprints were in the database as of January 1996 (due to
     crimes he committed in 1994). (Complaint ¶¶ 63, 77.)
          7
            The unidentified print later matched Eldred Johnson.
     See supra note 6.
                                     9
1    of comparison,” but concluded that Warney was a possible

2    source of the print.      (He also specifically excluded

3    Beason.)    (Id. ¶ 78.)

4        Warney testified to his innocence and about the threats

5    from the police that made him confess.

6        On February 12, 1997, the jury convicted Warney of two

7    counts of second-degree murder.       On February 27, he was

8    sentenced to 25 years to life.        The judgment was affirmed on

9    appeal, People v. Warney, 299 A.D.2d 956, 750 N.Y.S.2d 731

10   (4th Dep’t 2002), and became final when the New York Court

11   of Appeals denied leave to appeal on March 4, 2003, 99

12   N.Y.2d 633, 790 N.E.2d 289 (2003).

13       C.     Post-Conviction Proceedings.     In May 2004, Warney

14   filed a federal habeas corpus petition under 28 U.S.C. §

15   2254 in the United States District Court for the Western

16   District of New York, Warney v. McGinnis, No. 04-cv-6202(L)

17   (filed May 4, 2004), a filing of which we take judicial

18   notice.    Warney thereafter began seeking access to

19   biological evidence from the murder scene in order to

20   conduct DNA testing that he believed would exonerate him.

21   Warney’s attorney requested access to the evidence so as to

22   perform DNA testing at his own expense, but the Monroe


                                      10
1    County District Attorney’s office refused consent.

2    (Complaint ¶ 91.)

3        In October 2004, Warney moved under New York State’s

4    post-conviction statute, N.Y. Crim. Proc. Law 440.30(1-a)

5    (McKinney 2004) (the “440 motion”), seeking access to the

6    blood evidence found at the crime scene.     The 440 motion

7    sought access to, inter alia, blood found on the murder

8    weapon (which had been tested already), and blood found on

9    the victim’s fingernails (which had not been tested before).

10       The Monroe County District Attorney’s Office,

11   represented by District Attorney Michael C. Green and

12   Assistant District Attorney Wendy Evans Lehman, opposed the

13   440 motion, both in writing and at a hearing on November 15,

14   2004 before New York State Supreme Court Justice Francis A.

15   Affronti.   (Complaint ¶ 93.)    At the hearing, the District

16   Attorney’s office argued that Warney had not established due

17   diligence, and that the reasons underlying his request for

18   access to the blood evidence were speculative.     (Id.)

19       The 440 motion was denied in an order issued December

20   15, 2004, on the grounds that DNA testing “would not provide

21   evidence which is significantly different from that

22   submitted to the jury which convicted [Warney],” and that


                                     11
1    the request was based on “conjecture . . . too speculative

2    and improbable.”   (Id. ¶ 94.)        Warney appealed to the

3    Appellate Division.

4        D. DNA Testing and Exoneration.         In February 2005,

5    while the Monroe County District Attorney’s office was

6    opposing Warney’s appeal from the denial of his 440 motion,

7    and while Warney’s federal habeas petition was still

8    pending, Second District Attorney Larry Bernstein submitted

9    for DNA testing the blood evidence that was the subject of

10   Warney’s 440 motion–-a total of seven samples, including the

11   blood found under the victim’s fingernails and on the murder

12   weapon.   Bernstein did so with the authorization of the

13   District Attorney, and without informing the state or

14   federal court, Warney, or Warney’s attorney.8        (Id. ¶ 95.)

15       Warney alleges that, “[u]pon information and belief,

16   defendants Green, Bernstein, Lehman, and others in the DA’s

17   office received a verbal report of the DNA test results from

18   the Monroe County Public Safety Laboratory as early as

19   2005.”    (Id. ¶ 97 (emphasis added)).       The complaint does not

20   say when in 2005 the alleged verbal report was received, or


          8
             At oral argument, Warney’s counsel maintained that
     the DNA testing was destructive, such that once tested, the
     blood samples could not be retested.
                                      12
1    what it contained other than that it was “exculpatory.”

2    (Id.)

3        On February 17, 2006, approximately one year after

4    submitting the evidence to be tested, the District

5    Attorney’s office received a written laboratory report

6    showing that each of the seven blood samples submitted

7    matched a single profile of a man who was neither Beason nor

8    Warney.   The results of the testing were not immediately

9    disclosed to Warney or his lawyer.

10       Two weeks later, on March 2, 2006, the prosecutors

11   learned more: a search of the FBI’s Combined DNA Indexing

12   System (CODIS) database matched the profile to a man named

13   Eldred Johnson, who had been convicted of murder, as well as

14   several slashings and burglaries, and who was then serving a

15   life sentence in Utica, New York.

16       The district attorneys took the additional step of

17   ordering examination of the unidentified fingerprint found

18   on the pornographic videotape box.   On March 24, 2006, an

19   evidence technician from the RPD determined that the

20   fingerprint also matched Eldred Johnson.

21       The DNA testing results and the fingerprint match were

22   disclosed to Warney for the first time on May 1, 2006, when


                                   13
1    Monroe County attorneys informed Warney’s counsel that

2    Warney had been excluded as the source of the blood

3    evidence, though they did not advise that all the previously

4    unidentified blood was from the same man.     From February 17,

5    2006 to May 1, 2006 is a period of 72 days.

6        On May 11, 2006, the District Attorney’s office

7    interviewed Eldred Johnson, who promptly confessed to the

8    murder of Beason.   Johnson said that he had acted alone, and

9    did not know Douglas Warney.    The next day, the District

10   Attorney’s office informed Warney’s counsel of Johnson’s

11   confession.   Four business days after the confession (May

12   16, 2006), on application of the Monroe County District

13   Attorney’s office, Warney’s murder conviction was vacated.

14       In vacating Warney’s conviction, Justice Van Strydonck

15   pointed out that the inconsistencies in the blood evidence,

16   (i.e., the presence of a third source of blood) was known at

17   the time of trial: “the ‘newly found evidence’ is not the

18   fact that a third person’s blood was found at the scene . .

19   . [or] that Mr. Warney’s confession was inconsistent in many

20   important ways with the facts developed by the police and

21   the prosecutor’s office.   Those inconsistencies were known

22   by the defense and argued to the jury.    Rather the newly


                                    14
1    discovered evidence is the confession of Mr. Eldred

2    Johnson.”

3        Warney was released from prison, and Eldred Johnson

4    later pleaded guilty to the Beason murder.

5        E. This Lawsuit.   Warney filed suit under 42 U.S.C.

6    § 1983 against numerous defendants, including the City of

7    Rochester; Monroe County; various police officers and

8    detectives; and three prosecutors in the Monroe County

9    District Attorney’s office: Michael Green,9 Larry Bernstein,

10   and Wendy Evans Lehman.

11       The complaint initially pleaded three claims relating

12   to the prosecutors: (1) a due process claim for bad faith

13   denial of post-conviction access to biological evidence and

14   DNA testing (Count VI, which has since been withdrawn as to

15   the individual prosecutors); (2) a due process claim for

16   failing to promptly disclose material exculpatory evidence

17   (Count VII, which is at issue on this appeal); and (3)

18   a claim against Monroe County (Count IX, under Monell v.

19   Department of Social Services, 436 U.S. 658 (1978)), for

20   having a custom or policy of withholding biological evidence



          9
            The complaint named Green in both his individual
     capacity and his official capacity as District Attorney.
                                  15
1    in bad faith, and failing to promptly disclose exculpatory

2    information.

3         Defendants Green, Bernstein, and Evans Lehman, and

4    Monroe County moved to dismiss all counts against them on

5    grounds of absolute prosecutorial immunity, qualified

6    immunity, and failure to state a claim under Monell.10    By

7    Decision and Order dated February 11, 2008, the district

8    court denied the defendants’ motion to dismiss in all

9    respects.11    In summary, the district court concluded that

10   the prosecutors were acting in an “investigative” capacity

11   when they submitted the DNA evidence for testing and when

12   they later withheld the results, and they were therefore not

13   entitled to absolute immunity under Imbler, 424 U.S. at

14   430–31.   The court further concluded that the prosecutors

15   were not entitled to qualified immunity because reasonable

16   prosecutors should have known that failing to disclose

17   compelling exculpatory information for a period of at least


          10
             As to the Monell claim, Monroe County urged that
     the claim related only to acts undertaken by the District
     Attorney in his prosecutorial capacity, and in that capacity
     a District Attorney acts as an agent of the State of New
     York, not as an agent of a particular county.
          11
             However, the court did dismiss all claims against
     Green in his official capacity because it found such claims
     were subsumed by the Monell claim against Monroe County.
                                    16
1    72 days violated a clearly established, substantive due

2    process right.

3        The prosecutors and Monroe County appeal.

4

5                             DISCUSSION

6        When a district court denies immunity on a Rule

7    12(b)(6) motion to dismiss, “we review the district court’s

8    denial de novo, accepting as true the material facts alleged

9    in the complaint and drawing all reasonable inferences in

10   plaintiffs’ favor.”   Johnson v. Newburgh Enlarged School

11   Dist., 239 F.3d 246, 250 (2d Cir. 2001).

12       We have jurisdiction to review a denial of qualified

13   immunity under the collateral order doctrine if the denial

14   “‘turns on an issue of law.’”        Iqbal, 129 S. Ct. at 1946

15   (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).

16                                   I

17       The Supreme Court first acknowledged the absolute

18   immunity of prosecutors to § 1983 suits in Imbler v.

19   Pachtman, 424 U.S. 409 (1976).        The Court relied on a common

20   law tradition of prosecutorial immunity, as well as strong

21   policy considerations that supported extending immunity to

22   the § 1983 context: “A prosecutor is duty bound to exercise


                                     17
1    his best judgment both in deciding which suits to bring and

2    in conducting them in court.    The public trust of the

3    prosecutor’s office would suffer if he were constrained in

4    making every decision by the consequences in terms of his

5    own potential liability in a suit for damages.”    Imbler, 424

6    U.S. at 424–25.

7        Imbler defined the scope of prosecutorial immunity not

8    by the identity of the actor, but by reference to the

9    “function” performed.   Id. at 430.   Those acts that are

10   “intimately associated with the judicial phase of the

11   criminal process” would be shielded by absolute immunity,

12   but not “those aspects of the prosecutor’s responsibility

13   that cast him in the role of an administrator or

14   investigative officer rather than that of advocate.”      Id. at

15   430-31.

16       Thus, to establish immunity, the “ultimate question” is

17   “whether the prosecutors have carried their burden of

18   establishing that they were functioning as ‘advocates’ when

19   they engaged in the challenged conduct.”    Doe v. Phillips,

20   81 F.3d 1204, 1209 (2d Cir. 1996).    “A prosecutor’s

21   administrative duties and those investigatory functions that

22   do not relate to an advocate’s preparation for the


                                    18
1    initiation of a prosecution or for judicial proceedings are

2    not entitled to absolute immunity.”   Buckley v. Fitzsimmons,

3    509 U.S. 259, 273 (1993); see also Parkinson v. Cozzolino,

4    238 F.3d 145, 150 (2d Cir. 2001) (“The cases thus draw a

5    line between the investigative and administrative functions

6    of prosecutors, which are not protected by absolute

7    immunity, and the advocacy functions of prosecutors, which

8    are so protected.”).

9        Drawing this line between “advocacy” and

10   “investigative” functions is vexed, perhaps no more so than

11   in the post-conviction context.12   For once a conviction

12   becomes final, there is no longer a pending adversarial

13   criminal proceeding; the “judicial phase” is technically

14   finished.   Yet, by the nature of their office, prosecutors

15   will necessarily remain involved in criminal cases: opposing

16   civil habeas petitions (or other forms of collateral

17   relief); amending restitution orders; pursuing parole

18   violations; or resolving disputes over a prisoner’s

19   projected release date.   These functions may be somewhat


          12
             Imbler specifically avoided the post-conviction
     context. See Imbler, 424 U.S. at 431 (“We hold only that in
     initiating a prosecution and in presenting the State’s case,
     the prosecutor is immune from a civil suit for damages under
     § 1983.” (emphases added)).
                                   19
1    administrative, and may not always relate to in-court

2    advocacy, yet often they are integral to an ongoing

3    “judicial phase” of a prosecution.

4        Confronted with questions about the scope of absolute

5    prosecutorial immunity post-conviction, federal appellate

6    courts have stressed different aspects of the analysis, and

7    come to apparently conflicting results.   Compare Houston v.

8    Partee, 978 F.2d 362, 366 (7th Cir. 1992) (no absolute

9    immunity where prosecutors were “not personally prosecuting

10   the appeal” in post-conviction proceedings), with Carter v.

11   Burch, 34 F.3d 257, 263 (4th Cir. 1994) (absolute immunity

12   where prosecutor “was handling the post-conviction motions

13   and the initial direct appeal . . . [and thus] still

14   functioning as an advocate for the State”).   Most recently,

15   the Third and Sixth Circuits have suggested that absolute

16   immunity should extend to post-conviction conduct so long as

17   the prosecutor can show that an advocacy function was being

18   performed.   See Yarris v. County of Delaware, 465 F.3d 129,

19   137 (3d Cir. 2006) (“After a conviction is obtained, the

20   challenged action must be shown by the prosecutor to be part

21   of the prosecutor’s continuing personal involvement as the

22   state’s advocate in adversarial post-conviction proceedings


                                   20
1    to be encompassed within that prosecutor’s absolute immunity

2    from suit.”); Spurlock v. Thompson, 330 F.3d 791, 799 (6th

3    Cir. 2003) (“[a]bsolute immunity applies to the adversarial

4    acts of prosecutors during post-conviction proceedings . . .

5    where the prosecutor is personally involved . . . and

6    continues his role as an advocate,” but “where the role as

7    advocate has not yet begun . . . or where it has concluded,

8    absolute immunity does not apply.”).

9        Our Court has not addressed the scope of immunity

10   enjoyed by prosecutors in collateral proceedings; but we

11   have held that absolute immunity extends to actions taken

12   while working on direct appeals.      Parkinson, 238 F.3d at

13   151–52.   As we wrote in Parkinson:

14             We now join these courts in holding that
15             absolute immunity covers prosecutors’
16             actions after the date of conviction
17             while a direct appeal is pending. We
18             express no opinion as to when such
19             immunity ends; the prosecutors’ actions
20             in this case occurred while [the
21             defendant’s] direct appeal was pending,
22             and we have little difficulty extending
23             absolute immunity that far. [FN 5]
24
25             [FN 5] Specifically, because the facts of
26             this case do not raise the issue, we do
27             not decide whether absolute immunity
28             extends to collateral proceedings, such
29             as habeas petitions.
30
31   238 F.3d at 152 & n.5.

                                   21
1                                  II

2        On the facts of this case, we must now decide whether,

3    and how, absolute immunity extends to prosecutors working on

4    post-conviction collateral proceedings.   We see no

5    principled reason to withhold absolute immunity for work

6    performed in defending a conviction from collateral attack.

7        As we noted in Parkinson, there is language from some

8    Supreme Court decisions to the effect that “absolute

9    immunity appl[ies] to ‘acts undertaken by a prosecutor in

10   preparing for the initiation of judicial proceedings or for

11   trial.’”   238 F.3d at 151 (quoting Buckley, 509 U.S. at

12   273).   But “[s]uch language . . . does not serve to

13   delineate the endpoint of immunity. Rather, it simply

14   underscores the fact that absolute immunity does not apply

15   to the investigatory duties of a prosecutor, that is, it

16   serves to establish the starting point of such immunity.”

17   Id. (emphases in original).

18       Although a collateral attack is technically a separate,

19   civil proceeding, a prosecutor defending a post-conviction

20   petition remains the state’s advocate in an adversarial

21   proceeding that is an integral part of the criminal justice




                                   22
1    system.13    The considerations that militate in favor of

2    absolute immunity for work done at trial or on appeal are

3    just as relevant in the context of a collateral proceeding.

4    A post-conviction petition often presents the same kinds of

5    legal issues as the underlying criminal case, requires the

6    same kinds of legal judgments, and calls upon the same kinds

7    of advocacy skills and measures.    Often the same prosecutor

8    who conducted the trial will oppose the post-conviction

9    challenge.

10        Several courts have already held, or suggested, that

11   absolute immunity shields work performed by prosecutors

12   opposing habeas petitions.    See, e.g., Spurlock, 330 F.3d at

13   799 (“Absolute immunity applies to the adversarial acts of

14   prosecutors during post-conviction proceedings, including

15   direct appeals, habeas corpus proceedings, and parole

16   proceedings, where the prosecutor is personally involved in

17   the subsequent proceedings and continues his role as an

18   advocate.”); Summers v. Sjogren, 667 F. Supp. 1432, 1434 (D.

19   Utah 1987) (a prosecutor who allegedly filed false documents



          13
             See U.S. Const. art. II, § 9, cl. 2 (“The privilege
     of the writ of habeas corpus shall not be suspended, unless
     when in cases of rebellion or invasion the public safety may
     require it.”).
                                    23
1    in opposition to a habeas petition “does not lose immunity

2    merely because she was acting in a post-conviction

3    setting”).   We join these courts in holding that absolute

4    immunity shields work performed during a post-conviction

5    collateral attack, at least insofar as the challenged

6    actions are part of the prosecutor’s role as an advocate for

7    the state.

8                                 III

9        Having established that absolute prosecutorial immunity

10   may extend to advocacy work performed in the post-conviction

11   context, we must determine whether such immunity is

12   warranted in this case.

13       The answer depends in part on whether one looks at the

14   prosecutors’ discrete actions, or at their role and function

15   in an ongoing proceeding.   If one focuses on the DNA

16   testing, the prosecutors’ conduct might be classified as

17   investigative; if one focuses on the act of delaying

18   disclosure, the prosecutors’ conduct might be classified as

19   administrative, or possibly investigative; if one focuses on

20   the opposition to Warney’s 440 motion and habeas petition,

21   the prosecutors’ conduct might be classified as pure

22   advocacy.


                                   24
1        The district court, which focused on the testing and

2    the delay in disclosure, declined to extend absolute

3    immunity because it considered the prosecutors’ actions to

4    be “investigatory . . . no different than [] law enforcement

5    officials’ acts in obtaining and allegedly suppressing

6    favorable evidence.”

7        Warney does not complain that the prosecutors ordered

8    the testing; after all, that testing is what led to his

9    release.   Nor is Warney complaining (here) about the denial

10   of access to test the DNA for himself.14   Nor is he

11   complaining of non-disclosure of the test results--

12   disclosure was made.   Warney’s narrow focus is

13   (understandably) on the specific act that caused his harm:

14   the failure to disclose the DNA results promptly.

15       For the following reasons, we conclude that it is

16   unhelpful to ascertain the prosecutors’ functional role by

17   isolating each specific act done or not done; rather, a

18   prosecutor’s function depends chiefly on whether there is



          14
            Warney voluntarily withdrew his claim relating to
     bad-faith denial of access to evidence. Its validity would,
     in any event, be called into question by the Supreme Court’s
     recent decision in District Attorney’s Office for the Third
     Judicial District v. Osborne, 129 S. Ct. 2308, 2322 (2009)
     (finding no substantive due process right to DNA evidence
     post-conviction).
                                   25
1    pending or in preparation a court proceeding in which the

2    prosecutor acts as an advocate.

3        Unless the DNA testing is considered with reference to

4    context, it is impossible to classify functionally.     If the

5    testing inculpated Warney, it would be a potent tool of the

6    advocacy; if it exculpated Warney, it might be deemed

7    administrative, in the sense that it would entail

8    disclosure; if it inculpated someone else, it would be

9    investigative, at least to the extent that it might identify

10   the real killer.   But the steps taken here--testing,

11   disclosure, and even the delay in making disclosure, as well

12   as the identification of the real killer–-were integral to

13   and subsumed in the advocacy functions being performed in

14   connection with Warney’s post-conviction initiatives.     The

15   decisions made by the prosecutors in this case--whether to

16   test for potentially inculpatory (or exculpatory)

17   information, how and when to disclose or use that

18   information, and whether to seek to vacate Warney’s

19   conviction--were exercises of legal judgment made in the

20   “judicial phase” of proceedings integral to the criminal

21   justice process.

22       The DNA testing obviously would have bearing on the


                                   26
1    advocacy work of deciding whether to oppose Warney’s

2    initiatives.     A prosecutor has an affirmative obligation,

3    before filing an opposition, to ensure that the petition

4    should in fact be opposed.     See Fed. R. Civ. P. 11(b) (“By

5    presenting to the court a pleading . . . an attorney . . .

6    certifies that to the best of the person’s knowledge . . .

7    the factual contentions have evidentiary support.”).     The

8    proper and useful focus for ascertaining the function being

9    served by a prosecutor’s act is therefore on the pendency of

10   court proceedings that engage a prosecutor as an advocate

11   for the state.

12       The Supreme Court recently taught us that a prosecutor

13   enjoys absolute immunity even when doing an administrative

14   act if the act is done in the performance of an advocacy

15   function.   Van de Kamp v. Goldstein, 129 S. Ct. 855 (2009).

16   In Van de Kamp, the plaintiff had won habeas relief because

17   the government failed to disclose at trial, as required by

18   Giglio v. United States, 405 U.S. 150 (1972), that a

19   jailhouse informant had previously received reduced

20   sentences for providing favorable testimony.     In a § 1983

21   suit, the plaintiff alleged that the Los Angeles County

22   District Attorney (and other prosecutors) failed to


                                     27
1    establish information-sharing systems concerning jailhouse

2    informants, and failed to train prosecutors on how to share

3    such information.   The Ninth Circuit denied the prosecutors

4    absolute immunity, on the theory that the alleged failures

5    were more “administrative” than “prosecutorial.”

6    See Goldstein v. Long Beach, 481 F.3d 1170, 1171–72 (9th

7    Cir. 2007).   In reversing, the Supreme Court held that the

8    “administrative” tasks at issue (establishing information-

9    sharing systems and training attorneys on how to share

10   information) were “‘intimately associated with the judicial

11   phase of the criminal process.’”   Van de Kamp, 129 S. Ct. at

12   864 (quoting Imbler, 424 U.S. at 430).   The Court explained:

13            Here, unlike with other claims related to
14            administrative decisions, an individual
15            prosecutor’s error in the plaintiff’s
16            specific criminal trial constitutes an
17            essential element of the plaintiff’s
18            claim. The administrative obligations at
19            issue here are thus unlike administrative
20            duties concerning, for example, workplace
21            hiring, payroll administration, the
22            maintenance of physical facilities, and
23            the like. Moreover, the types of
24            activities on which Goldstein’s claims
25            focus necessarily require legal knowledge
26            and the exercise of related discretion,
27            e.g., in determining what information
28            should be included in the training or the
29            supervision or the information-system
30            management. And in that sense also
31            Goldstein’s claims are unlike claims of,
32            say, unlawful discrimination in hiring

                                   28
1             employees. Given these features of the
2             case before us, we believe absolute
3             immunity must follow.
4
5    Id. at 862.    Just as the administrative act in Goldstein was

6    integral to an advocacy function, we conclude that the

7    prosecutors’ actions here--which could be seen as

8    administrative or investigative--were also integral to the

9    overarching advocacy function of dealing with post-trial

10   initiatives challenging an underlying criminal conviction:

11   they “require[d] legal knowledge and the exercise of related

12   discretion.”    Id.

13       If the conduct challenged by Warney had occurred during

14   Warney’s trial, that is, if the prosecutors had tested all

15   the evidence, and then sat on the exculpatory results for at

16   least 72 days, they may well have violated Brady v.

17   Maryland, 373 U.S. 83 (1963); but they would be absolutely

18   immune from personal liability.     See, e.g., Jones v.

19   Shankland, 800 F.2d 77, 80 (6th Cir. 1986) (a prosecutor’s

20   “non-disclosure of exculpatory information [is] certainly

21   entitled to absolute immunity”).     The reason that is so is

22   that the disclosure of evidence to opposing counsel is an

23   advocacy function.

24       The disclosure decision in this case is advocacy


                                    29
1   notwithstanding that the evidence would likely terminate the

2   ongoing post-conviction proceedings in favor of the

3   petitioner.   The advocacy function of a prosecutor includes

4   seeking exoneration and confessing error to correct an

5   erroneous conviction.   Thus prosecutors are under a

6   continuing ethical obligation to disclose exculpatory

7   information discovered post-conviction. 15   Any narrower

         15
           Rule 3.8 of the American Bar Association Model Rules
    of Professional Conduct reads:

              (g) When a prosecutor knows of new,
              credible and material evidence creating a
              reasonable likelihood that a convicted
              defendant did not commit an offense of
              which the defendant was convicted, the
              prosecutor shall:

              (1) promptly disclose that evidence to an
              appropriate court or authority, and

              (2) if the conviction was obtained in the
              prosecutor’s jurisdiction,

                   (i) promptly disclose that evidence
              to the defendant unless a court
              authorizes delay, and

                   (ii) undertake further
              investigation, or make reasonable efforts
              to cause an investigation, to determine
              whether the defendant was convicted of an
              offense that the defendant did not
              commit.

              (h) When a prosecutor knows of clear and
              convincing evidence establishing that a

                                  30
1    conception of a prosecutor’s role would be truly alarming.

2        The prosecutors are therefore entitled to absolute

3    immunity in this lawsuit.    On the facts of this case, we

4    need not, and do not, decide whether absolute immunity

5    extends to prosecutorial conduct regarding DNA evidence,

6    occurring after a prisoner’s appeals and collateral attacks

7    have been exhausted.    Moreover, because we extend absolute

8    immunity in this case, we do not address the prosecutors’

9    alternative argument that they are entitled to qualified

10   immunity.

11                                   IV

12       Affording absolute immunity in this context, with the

13   resulting dismissal of Warney’s claim against the

14   prosecutors, does not deprecate the duty of prosecutors to

15   prevent unjust imprisonment.     Indeed, absolute immunity is

16   afforded in part because we conclude that the duty is a part

17   of the prosecutor’s advocacy function.        This outcome affords

18   no incentive for concealment.        A civil law suit is not a

19   necessary enforcement mechanism for ensuring that



                 defendant in the prosecutor’s
                 jurisdiction was convicted of an offense
                 that the defendant did not commit, the
                 prosecutor shall seek to remedy the
                 conviction.


                                     31
1    prosecutors disclose exculpatory information promptly.

2    Prosecutors remain ethically bound to disclose exculpatory

3    information, and, in extreme cases of intentional

4    suppression, prosecutors may be subject to criminal

5    liability.   See Imbler, 424 U.S. at 428–29 (“We emphasize

6    that the immunity of prosecutors from liability in suits

7    under § 1983 does not leave the public powerless to deter

8    misconduct or to punish that which occurs.     This Court has

9    never suggested that the policy considerations which compel

10   civil immunity for certain governmental officials also place

11   them beyond the reach of the criminal law.”).

12       Moreover, the availability of absolute immunity in this

13   context will likely encourage prosecutors in the future to

14   seek exculpatory information post-trial.     Absolute immunity

15   of prosecutors is grounded in the fear that the “public

16   trust of the prosecutor’s office would suffer if [the

17   prosecutor] were constrained in making every decision by the

18   consequences in terms of his own potential liability in a

19   suit for damages.”   Imbler, 424 U.S. at 424-25; see also

20   Kalina v. Fletcher, 522 U.S. 118, 125 (1997) (“[I]t is the

21   interest in protecting the proper functioning of the office,

22   rather than the interest in protecting its occupant, that is



                                   32
1    of primary importance.”).      “ To be sure, this immunity does

2    leave the genuinely wronged defendant without civil redress

3    against a prosecutor whose malicious or dishonest action

4    deprives him of liberty.    But the alternative of qualifying

5    a prosecutor’s immunity would disserve the broader public

6    interest. It would prevent the vigorous and fearless

7    performance of the prosecutor’s duty that is essential to

8    the proper functioning of the criminal justice system.”

9    Imbler, 424 U.S. at 427-28 .     Prosecutors facing tough

10   choices as to whether or not to seek exculpatory information

11   post-conviction should not have to fear personal liability

12   in the event that issues are raised later as to the

13   evaluation and disclosure of what is learned during the

14   pendency of post-conviction proceedings.      Such a peril would

15   be an incentive to avoid exculpatory inquiries.

16                                    V

17       Finally, Monroe County argues that Warney’s claim

18   against it should have been dismissed because the claim

19   relates solely to actions undertaken by the Monroe County

20   prosecutors in their “prosecutorial” capacity, and

21   prosecutors acting in that capacity are agents of the State

22   of New York, not agents of the particular county.      See,


                                      33
1    e.g., Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988).

2    Alternatively, Monroe County argues that Warney has failed

3    to identify an underlying constitutional deprivation to

4    support a claim under Monell, 436 U.S. 658.

5        Unlike the order denying immunity, the order denying

6    Monroe County’s motion to dismiss is not immediately

7    appealable pursuant to the collateral order doctrine.        See

8    Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)

9    (under the collateral order doctrine, an appellate court may

10   not exercise jurisdiction where an order does not

11   “conclusively determine the disputed question”).    Monroe

12   County asks us to exercise pendent appellate jurisdiction;

13   but in this Circuit we exercise pendent appellate

14   jurisdiction only “over an independent but related question

15   that is ‘inextricably intertwined’ with the [appealable

16   issue] or is ‘necessary to ensure meaningful review’ of that

17   issue.”   Kaluczky v. City of White Plains, 57 F.3d 202, 207

18   (2d Cir. 1995) (quoting Swint v. Chambers County Comm’n, 514

19   U.S. 35, 51 (1995)).   The elements of a Monell claim, and

20   the extent to which prosecutors in New York are agents of

21   the state (as opposed to a county) are not inextricably

22   intertwined with the question of absolute immunity.     We


                                   34
1   therefore decline to exercise pendent appellate jurisdiction

2   over these issues at this time.

3

4                            CONCLUSION

5       For the foregoing reasons, the order of the district

6   court insofar as it denied absolute immunity to the three

7   Monroe County prosecutors is reversed, and the case is

8   remanded for further proceedings consistent with this

9   opinion.




                                 35
