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Reprinted with permission from the July 13, 2009 edition of National Law Journal ¸ 2009 Incisive Media Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

13 July 2009

Turning the tables
ALM

By Tresa Baldas

Julian Wendrow recalls bitterly the afternoon of Nov. 27, 2007, when he got that mind-numbing phone call from child protective services.

His 14-year-old autistic daughter had accused him of sexually abusing her. The mute girl had typed out the allegation to school officials with the help of an aide.

"It just blind-sided us. It was like a tsunami that rolled over us," Wendrow said of the allegation, and the nightmare that transpired.

Wendrow, a father of two with no criminal history, and owner of a small painting business in West Bloomfield, Mich., was charged with sexually abusing his daughter and jailed for 80 days with no bond. His wife, Tali, a lawyer, was charged with failing to protect the girl. Their two children were taken away.

Isolated and horrified at the prospect of losing his kids, Wendrow fought losing his mind in his 6- by 6-foot cell, worried about the safety of his children, unable to make any calls to family. His wife was under house arrest, aghast by media reports in which prosecutors labeled her husband a child abuser and she a mother who failed to protect her daughter.

Four months after they were arrested, the charges were dropped due to a lack of evidence. Now, the couple is suing the prosecutor, police and 23 other defendants for malicious prosecution, alleging that prosecutors were "vicious and malicious" in aggressively pursuing a case that was largely based on weak evidence and unreliable statements.

"You can't just target innocent people and say, 'We were just trying to do our jobs,' " Wendrow said. "If you've made a mistake, you step up and say, 'I'm sorry.' ...But in our case, there was no mistake. It was a malicious desire to achieve another notch on their belt - come hell or high water."

The Wendrows are not alone. They are among a long line of plaintiffs seeking to hold prosecutors accountable for their actions and to challenge the historically powerful government immunity defense, which in most instances keeps prosecutors from being sued.

Although courts have long upheld the immunity defense, a handful of recent decisions are starting to chip away at it, allowing wronged defendants to seek vindication, and pushing malicious prosecution claims beyond summary judgment.

Last year, the U.S. Court of Appeals for the 8th Circuit said that immunity did not apply to two Iowa prosecutors accused in the wrongful murder convictions of two men who served 25 years in prison before their convictions were overturned. In September, Tuscarawa County, Ohio, paid $2.2 million to settle a malicious prosecution case after the U.S. Court of Appeals for the 6th Circuit found that the county's chief prosecutor did not have immunity because she arrested Anthony Harris for murder without probable cause and because her actions went outside the traditional scope of a prosecutor.

David Laufman, a former federal prosecutor and current white-collar partner in the Washington office of New York's Kelley Drye & Warren, believes that the immunity defense is losing its clout with judges, given the prosecutorial misconduct in cases making the news. He cited the recent prosecution of former Sen. Ted Stevens (R-Alaska), whose corruption conviction was thrown out in April due to prosecutors' mistakes.

"The collective impact of these cases, particularly high-profile ones, may be causing judges to lose confidence in the credibility and sometimes integrity of prosecutors. And that may be causing them to view immunity defenses with greater skepticism than they have historically," Laufman said.

A HIGH HURDLE

The U.S. Supreme Court has been dealing with prosecutor immunity since its 1976 ruling in Imbler v. Pachtman, when it held that state prosecutors acting within the scope of their duties are "absolutely immune from a civil suit." Since then, most Supreme Court rulings have sided with prosecutors on immunity. The latest came in January when the Court ruled in Van de Kamp v. Goldstein that county prosecutors are shielded from being sued, even if their management mistakes lead to erroneous convictions.

Jeffrey Sarles of Chicago's Mayer Brown is counting on the high court to once again rule in favor of absolute immunity when it hears his clients' case this fall. Sarles is representing two Iowa prosecutors fighting for immunity in Pottawattamie County v. McGhee.

Sarles' clients are accused of procuring false testimony during a homicide investigation - before charges were filed - and later using it at trial to convict two men of murder. The 8th Circuit said that such actions violated the defendants' due process rights and that the prosecutors are not entitled to absolute or qualified immunity.

Sarles argues that the prosecutors were acting within the scope of their jobs and are entitled to absolute immunity. "If [immunity] begins to get chipped away in various ways, then it becomes very difficult for prosecutors to do their job," Sarles said.

Daniel Warren, a partner in the Cleveland office of Baker Hostetler, who represented Harris before the 6th Circuit, agrees that the immunity defense is tough to get around, but not impossible, particularly when prosecutors have stepped outside their role as a prosecutor. For example, a statement at a press conference or investigative actions might not be considered core prosecutorial functions, and therefore not entitled to absolute immunity.

Warren said the 6th Circuit was sending a message when it ruled in his client's favor. "The message in that ruling is that prosecutors cannot necessarily hide behind immunity when they knowingly use their position to persecute someone without any basis," Warren said. "Had the case gone to trial, the immunity defense was pretty much out the window."

THE PROSECUTOR'S PERSPECTIVE

Prosecutors argue that the immunity defense is necessary in their line of work. They need to be able to investigate crimes, bring charges - and even drop charges should new evidence surface - without fear of getting sued by resentful crime suspects.

"Every prosecutor makes decisions every day that somebody could just go ahead and file a lawsuit over. If there is no immunity…anyone with a filing fee can sue, whether their case is meritorious or not," said James Fox, chairman of the National District Attorneys Association.

Fox, a prosecutor for nearly 27 years and currently the district attorney for San Mateo County, Calif., has been sued for malicious prosecution himself more than a dozen times, although never successfully. The immunity defense always worked, he said.

"Clearly, from my perspective, absolute immunity is critical because, otherwise, why would anyone want to be a prosecutor if they're going to end up with personal liability for doing their job?," Fox said.

David Gorcyca, the former prosecutor in Oakland County, Mich., who is being sued by the Wendrows, echoed similar concerns, saying prosecutors should be able to review and prosecute cases "without having to look over their shoulder in fear of being sued."

Gorcyca, now a private litigator at Flood Lanctot Connor & Stable in Royal Oak, Mich., defended his decision to charge the Wendrows, saying that the girl had disclosed to six different people that she was being abused at home. He also disputed allegations that his office relied on flimsy evidence obtained by using a controversial form of communication known as "facilitated communication." That's when a mute person types out messages on a keyboard with the help of an aide.

Gorcyca said the Wendrows themselves were strong advocates for that form of communication. He said they lectured on it, wrote articles in support of it, and urged the schools to implement it.

"When all the facts come to light through the course of the civil litigation, the public will have a complete understanding for the basis for which those charges were brought," Gorcyca said. "The decision will not only be justified, but will be legitimized." But that could take some time.The case, filed in the U.S. District Court for the Eastern District of Michigan, is unlikely to get to a jury until next year - and that's if the claims survive an immunity challenge from Gorcyca.

As for why he dropped the charges, Gorcyca said, "The girl was petrified to go into court and testify....Without her testimony, we could not prove our case."

"I see no reason why the decision in my office should not be held immune from civil liability," added Gorcyca, who does not believe he owes the Wendrows an apology. "Over my dead body," he said.

For the Wendrows, Gorcyca's refusal to admit a mistake is infuriating.

"Had they been remotely interested in the facts and truth, it probably would have taken them 48 hours or so to realize that they had absolutely nothing," said the Wendrows' attorney, Deborah Gordon of the Law Offices of Deborah L. Gordon in Bloomfield Hills, Mich. Gordon said the prosecutors couldn't admit "that they screwed up" after dropping the charges. "They basically said, 'Hey, public, these Wendrow people, they're really guilty. But you know how it is - wink, wink - we just couldn't get them this time," Gordon said.


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