Amicus Curiae Brief — Burt W. Newsome, et al., Petitioners v. Clark A. Cooper, et al.

No. 21-81

IN THE

SUPREME COURT OF THE UNITED STATES

__________________

BURT W. NEWSOME AND NEWSOME LAW LLC,

Petitioners,

v.

CLARK ANDREW COOPER, BALCH & BINGHAM, LLP,

JOHN W. BULLOCK, JR., CLAIBORNE PORTER SEIER,

AND DON DOTTIER,

Respondents.

__________________

On Petition for a Writ of Certiorari to the

Supreme Court of Alabama

__________________

MOTION FOR LEAVE TO FILE A BRIEF AS AMICUS

CURIAE AND BRIEF OF CONSEJO DE LATINOS

UNIDOS AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS

__________________

Brian J. Zeiger, Esquire

Counsel of Record

Levin & Zeiger, LLP

1500 JFK Blvd, Suite 620

Philadelphia, PA 19102

(215) 546-0340

zeiger@levinzeiger.com

Counsel for Amicus Curiae

MOTION FOR LEAVE TO FILE A BRIEF AS

AMICUS CURIAE

Consejo de Latinos Unidos (“amicus”) hereby

move, pursuant to S. Ct. R. 37.2, for leave to file a

brief amicus curiae in support of the petition for a

writ of certiorari to the Supreme Court of the United

States. Amicus is filing this motion because we have

been unable to secure consent from Respondents.* A

copy of the proposed brief is attached.

As more fully explained on page 1 of the

attached brief under “Interest of Amicus Curiae,”

amicus is a non-profit, non-partisan national public

charity that has spurred three U.S. Congressional

investigative hearings and numerous federal, state,

and local probes. Amicus fights unethical and

unsavory businesses, inept government agencies, and

corruption. Amicus educates the public about

miscarriages of justice when government breaches

the rule of law.

This brief will assist the Court in determining

whether to grant certiorari because amicus is well

positioned to point out the importance of inept

government agencies and government corruption.

Amicus is not motivated by a desire to influence the

outcome of any pending case, nor is amicus

* Correspondences was sent via email to Petitioner and

Respondents on August 10, 2021. In addition, a letter was sent

to Respondent Don Gottier via FedEx on August 10, 2021. As of

this date, Petitioner has consented, but have not received a

reply from any of the Respondents.

interested in the merits of this particular case, Burt

W. Newsome et al. v. Clark A. Cooper et al. Rather,

because amicus are frequent and repeat participants

in all aspects of uprooting corrupt government

practices, amicus can inform the Court of the broad

implication of the Alabama Supreme Court’s ruling.

Amicus cannot emphasize enough the importance of

this Court reversing the decision of the Supreme

Court Alabama.

Accordingly, amicus respectfully requests that

the Court grant leave to file the attached brief as

amicus curiae.

Respectfully submitted,

Brian J. Zeiger, Esquire

Counsel of Record

Levin & Zeiger, LLP

1500 JFK Blvd, Suite 620

Philadelphia, PA 19102

(215) 546-0340

zeiger@levinzeiger.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICUS CURIAE.............................1

SUMMARY OF ARGUMENT .....................................1

ARGUMENT ...............................................................2

I. Prosecutors Owe a Duty to the Public to Have no

Interest in the Outcome of Criminal Cases ............2

II. This Court Has Never Approved of the

Widespread Use of Release-Dismissal Agreements

..................................................................................3

III. Courts and Ethics Officials Recognize That

Release-Dismissal Agreements Are Improper ...... 10

IV. Release-Dismissal Agreements Affecting

Private Actors Violate the Limits Established in

Rumery and Create Unconstitutional Incentives

for Prosecutors ....................................................... 12

V. The Unique Facts of this Case Present a Good

Vehicle to Limit Release-Dismissal Agreements

Waiving Liability for Private Actors ..................... 15

CONCLUSION .......................................................... 20

ii

TABLE OF AUTHORITIES

CASES

Berger v. United States, 295 U.S. 78, 88 (1935) .........2

Cain v. Darby Borough, 7 F.3d 377, 380 (3d Cir.

1993) ................................................................... 8, 11

Coughlen v. Coots, 5 F.3d 970, 974 (6th Cir. 1993) ....7

Cowles v. Brownell, 538 N.E.2d 325, 327 (1989) ........9

Dixon v. D.C., 394 F.2d 966 (D.C. Cir. 1968) ....... 3, 13

Gonzalez v. Kokot, 314 F.3d 311, 317 (7th Cir. 2002) 8

Lusby v. T.G. & Y. Stores, 749 F.2d 1423 (10th Cir.

1984) .........................................................................4

MacDonald v. Musick, 425 F.2d 373, 375 (9th Cir.

1970) .........................................................................5

Town of Newton v. Rumery, 480 U.S. 386 (1987) 5, 10,

15

Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S.

787, 807 (1987) ............................................. 2, 12, 15

SECONDARY SOURCES

Ind. Op. No. 2005-2 (2005) ..........................................9

iii

Peter A. Joy, Kevin C. McMunigal, Police Misconduct

and Release-Dismissal Agreements, Crim. Just. 31,

at 33-34 (Fall 2018)............................................ 9, 12

1

INTEREST OF AMICUS CURIAE1

The Consejo De Latinos Unidos (“CDLU”) is a

non-profit, non-partisan national public charity that

has spurred three U.S. Congressional investigative

hearings and numerous federal, state, and local

probes. The CDLU fights unethical and unsavory

businesses, inept government agencies, and

corruption. CDLU educates the public about

miscarriages of justice when government breaches the

rule of law. It is in defense of this mission to uproot

corrupt government practices, that Amicus Curiae the

CDLU now urges this Court to reverse the decision of

the Supreme Court of Alabama.

SUMMARY OF ARGUMENT

This Court should grant certiorari to

Petitioners Burt W. Newsome and Newsom Law LLC

and hold that release-dismissal orders entered in

criminal cases are unlawful when they claim to

foreclose all future civil liability for non-governmental

1 No counsel for a party authored this brief in whole or in part,

and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this

brief. No person other than the amicus curiae, or its counsel

made a monetary contribution to its preparation or

submission. The parties were provided timely notice

of amicus’s intent to file. As of this date, Petitioner has

consented, but amicus has not received a reply from any of the

Respondents, and is filing this brief pursuant to the

accompanying motion for leave.

2

persons and entities, including unidentified parties.

These agreements offend core premises of basic

fairness because they serve no public prosecutorial

function, suppress valid civil claims against private

parties, and impermissibly make the prosecutor have

an interest in the outcome, in violation of both due

process and professional ethical obligations. This case

presents a good vehicle for this Court to condemn such

agreements and stop authorities in Shelby County

Alabama from exploiting this practice to the

detriment of CDLU’s constituents. Further, this

release dismissal order, was propped up to an unfiled

draft order to vacating an expungement order that

was never entered into the Alabama State Judicial

Information System record.

ARGUMENT

I. Prosecutors Owe a Duty to the Public to Have

no Interest in the Outcome of Criminal Cases

A prosecutor holds a special position in our

system of justice. “The [prosecutor] is the

representative not of an ordinary party to a

controversy, but of a sovereignty whose obligation to

govern impartially is as compelling as its obligation to

govern at all; and whose interest, therefore, in a

criminal prosecution is not that it shall win a case, but

that justice shall be done.” Berger v. United States,

295 U.S. 78, 88 (1935).

Thus, this Court has required that matters only

be prosecuted by a “disinterested prosecutor.” Young

v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807

(1987). But when a prosecutor considers private

3

interests, he is not disinterested. Id. “The

Government’s interest is in dispassionate assessment

of the propriety of criminal charges” but a “private

party’s interest is in obtaining the benefits of the

court’s order.” Id. at 805. When a prosecutor has

private interests as well, he “may be tempted to bring

a tenuously supported prosecution if such a course

promises financial or legal rewards for the private

client. Conversely, a prosecutor may be tempted to

abandon a meritorious prosecution if a settlement

providing benefits to the private client is conditioned

on a recommendation against criminal charges.” Id.

“In a case where a prosecutor represents an

interested party [] the ethics of the legal profession

require that an interest other than the Government’s

be taken into account. Given this inherent conflict in

roles, there is no need to speculate whether the

prosecutor will be subject to extraneous influence.” Id.

at 808. Thus, a proceeding is inconsistent with “basic

notion of fairness” if the prosecutor “represents an

interested person” to the proceeding. Id. And such

errors are structural, as it “is a fundamental premise

of our society that the state wield its formidable

criminal enforcement powers in a rigorously

disinterested fashion, for liberty itself may be at stake

in such matters.” Id. at 810.

II. This Court Has Never Approved of the

Widespread

Use

of

Release-Dismissal

Agreements

Courts have long viewed release-dismissal

practices with skepticism, if not outright hostility. For

4

instance, in 1968 the D.C. Circuit ordered criminal

charges over which it had supervisory powers

dismissed in the D.C. Superior Court. See Dixon v.

D.C., 394 F.2d 966 (D.C. Cir. 1968). In a concurring

opinion, Chief Judge Bazelon explained that this

dismissal was justified in part because of the

prosecution’s abuse of a release-dismissal agreement,

and the “need to prevent” such agreements from being

used in future cases. See id. at 968.

According to Chief Judge Bazelon:

The major evil of these agreements is not

that charges are sometimes dropped

against people who probably should be

prosecuted. Much more important, these

agreements suppress complaints against

police misconduct which should be

thoroughly aired in a free society. And

they tempt the prosecutor to trump up

charges for use in bargaining for

suppression of the complaint. The

danger of concocted charges is

particularly great because complaints

against the police usually arise in

connection with arrests for extremely

vague offenses such as disorderly

conduct or resisting arrest.

Courts may not become the ‘enforcers’ of

these odious agreements. We must

therefore bar prosecutions which are

brought because the defendant refused

to promise or reneged on a promise not to

5

file a complaint against the police.

Prosecutors will then have no incentive

to offer or make such agreements.

Id. at 969-70.

Other courts held similar views. In a later

opinion, the Tenth Circuit described its 1984 case in

Lusby v. T.G. & Y. Stores, 749 F.2d 1423 (10th Cir.

1984) as having “excoriated” the use of “releasedismissal agreement.” Hammond v. Bales, 843 F.2d

1320, 1322 (10th Cir. 1988). In another case, the

Ninth Circuit strongly condemned such agreement,

saying:

It is no part of the proper duty of a

prosecutor to use a criminal prosecution

to forestall a civil proceeding by the

defendant against policemen, even

where the civil case arises from the

events that are also the basis for the

criminal charge. We do not mean that

the prosecutor cannot present such a

criminal charge. What he cannot do is

condition a voluntary dismissal of a

charge upon a stipulation by the

defendant that is designed to forestall

the latter’s civil case. The situation is

made no better by the fact that here the

record indicates that it was the court

that asked [the criminal defendant]

whether he would stipulate. Rather, it

makes it worse. It brings the court to the

aid of the prosecutor in coercing the

6

defendant into agreeing to what

amounts to a forfeiture of his civil rights.

Nor can the prosecutor, because of

failure to obtain the demanded

stipulation, then introduce another

charge in the hope of defeating the

possible civil action of the defendant.

MacDonald v. Musick, 425 F.2d 373, 375 (9th Cir.

1970). Indeed, the Ninth Circuit described releasedismissal agreements as criminal “extortion.” Id. at

376.

That judicial skepticism did not change with

this Court’s opinion in Town of Newton v. Rumery, 480

U.S. 386 (1987). The Court certainly did not endorse

release-dismissal agreements. It did however accept

that they could serve some limited public interest. The

Court’s holding showed its trepidation: “Thus,

although we agree that in some cases these

agreements may infringe important interests of the

criminal defendant and of society as a whole, we do

not believe that the mere possibility of harm to these

interests calls for a per se rule.” Rumery, 480 U.S. at

392.

In support of its ultimate conclusion a plurality

of the Court addressed some of the concerns espoused

by earlier courts. Justice Powell wrote, “We can agree

that in some cases there may be a substantial basis

for this concern. It is true, of course, that § 1983

actions to vindicate civil rights may further

significant public interests.” Id. at 395-96 (Powell, J.,

plurality op.). But Justice Powell also opined about

the public burden imposed by such lawsuits:

7

The vindication of constitutional rights

and the exposure of official misconduct

are not the only concerns implicated by §

1983 suits. No one suggests that all such

suits are meritorious. Many are

marginal and some are frivolous. Yet

even when the risk of ultimate liability is

negligible, the burden of defending such

lawsuits is substantial. Counsel may be

retained by the official, as well as the

governmental entity. Preparation for

trial, and the trial itself, will require the

time and attention of the defendant

officials, to the detriment of their public

duties. In some cases litigation will

extend over a period of years. This

diversion of officials from their normal

duties and the inevitable expense of

defending even unjust claims is

distinctly not in the public interest. To

the extent release-dismissal agreements

protect public officials from the burdens

of defending such unjust claims, they

further this important public interest.

Id. at 395-96 (emphasis added).

Ultimately, this Court set out three factors to

consider when asking if a particular release-dismissal

agreement is enforceable: (1) the voluntariness of the

agreement, (2) evidence of prosecutorial misconduct,

and (3) whether enforcement of the agreement would

8

“adversely affect relevant public interests.” Id. at 39798.

Justice O’Connor, who provided the Court’s

critical fifth vote, concurred, writing separately to

clarify that it was the defendant’s burden to “prove”

that the release in question “was voluntarily made,

not the product of prosecutorial overreaching, and in

the public interest.” Id. at 401 (O’Connor, J.,

concurring). Justice O’Connor also thoroughly

discussed the need for the agreement to be “directly

related to [the prosecutor’s] criminal justice function.”

Id. at 402. Indeed, the prosecutor’s function with these

types of agreements was quite distinct from a plea

bargain. Id. at 400. “The legitimacy of plea bargaining

depends in large measure upon eliminating

extraneous considerations from the process. No court

would knowingly permit a prosecutor to agree to

accept a defendant’s plea to a lesser charge in

exchange for the defendant’s cash payment to the

police officers who arrested him. Rather, the

prosecutor is permitted to consider only legitimate

criminal justice concerns in striking his bargain—

concerns such as rehabilitation, allocation of criminal

justice resources, the strength of the evidence against

the defendant, and the extent of his cooperation with

the authorities.” Id. at 401. Unlike plea agreements,

“[t]he central problem with the release-dismissal

agreement is that public criminal justice interests are

explicitly traded against the private financial interest

of the individuals involved in the arrest and

prosecution.” Id. (emphasis added). Only when a court

is certain that there is a legitimate public interest

should such agreements be allowed. Id.

9

The Courts of Appeals have long demanded

strict compliance with Rumery’s factors. Releasedismissal agreements are not “presumptively valid”—

quite the opposite. Coughlen v. Coots, 5 F.3d 970, 974

(6th Cir. 1993). Indeed, “these agreements should be

scrutinized closely in cases where substantial

evidence supports an allegation of police misconduct,

in view of the potential for abuse of release-dismissal

agreements by law enforcement officials.” Id. And, in

every case, the prosecution must have “an

independent, legitimate criminal justice objective” for

the agreement. Id. But “[t]he potential for abuse of

release-dismissal agreements has led the Supreme

Court to urge the use of a critical eye when courts are

asked to enforce them.” Gonzalez v. Kokot, 314 F.3d

311, 317 (7th Cir. 2002).

A clear example of an abuse of releasedismissal agreements came before the en banc Third

Circuit in Cain v. Darby Borough, 7 F.3d 377, 380 (3d

Cir. 1993). There the Third Circuit rejected a

prosecutor’s “blanket policy” of requiring releasedismissal agreements for participation in an

accelerated rehabilitation program that would result

in dismissal of minor offenses. Id. at 382-83. The

Court said, “Rumery requires the District Attorney to

identify a legitimate public policy supporting the

decision to dismiss criminal charges in return for a

defendant’s agreement to release a civil rights claim.

We recognize that protecting public officials from civil

suits may in some cases provide a valid public interest

and justify the enforcement of a release-dismissal

agreement. Nonetheless, we believe that under

Rumery there must first be a case-specific showing

10

that the released civil rights claims appeared to be

marginal or frivolous at the time the agreement was

made and that the prosecutor was in fact motivated

by this reason.” Id. at 383.

III. Courts and Ethics Officials Recognize That

Release-Dismissal Agreements Are Improper

Although this Court has allowed limited use of

release-dismissal agreements, individual jurisdictions

have raised greater concerns. For instance, New York

has adopted a very strong presumption against

release-dismissal agreements. In Cowles v. Brownell,

538 N.E.2d 325, 327 (1989), the court found that these

agreements were “no benefit, only a loss” to the

criminal justice system. If the charges were not

provable, the prosecutor had an ethical duty to

dismiss them without extracting the price of a civil

release. If the evidence was sufficient to gain a

conviction, as the prosecutor maintained, then the

dismissal of charges was contrary to the public

interest in seeing a wrongdoer punished. Thus the

release-dismissal agreement before the Court

undermined “the legitimate interests of the criminal

justice system solely to protect against civil liability;

it surely does not foster public confidence that the

justice system operates evenhandedly.” Id.

Release-dismissal

agreements

are

also

unethical. As one commentator put it, “the ethics rules

… prohibit a prosecutor from entering into a releasedismissal agreement,” because “there is a risk that is

significant” “that the prosecutor will not pursue the

government’s interest in the criminal matter due to

11

the civil interests of the police and municipality.”

Peter A. Joy, Kevin C. McMunigal, Police Misconduct

and Release-Dismissal Agreements, Crim. Just. 31, at

33-34 (Fall 2018). Further, “a prosecutor violates [his]

duty whenever the prosecutor conditions the

dismissal of criminal charges that lack merit on a

release of civil claims.” Id. at 34-35.

Indeed, state ethics authorities have also

concluded that release-dismissal agreements are per

se unethical. In Ind. Op. No. 2005-2 (2005), the

Indiana State Bar Association Legal Ethics

Committee found that a prosecutor proposing or

entering into release-dismissal agreements would

violate three Indiana Rules of Professional Conduct

(RPC). First, the prosecutor would have a conflict of

interest under RPC 1.7(a) due to “the competing

interests of the state of Indiana, whom he/she

represents, and the interests of the law enforcement

agency or municipality who is the subject of a

potential civil suit.” Id. Further, the committee found

that a prosecutor entering into a release-dismissal

agreement is violating RPC 8.4(d), engaging in

conduct prejudicial to the administration of justice, by

“using the power of a criminal charge to coerce a

defendant to release a civil right.” Id. The ethics

committee also held that “a criminal defense attorney

or civil attorney who proposes a release-dismissal

agreement would be in violation of RPC 8.4(d) as

well.” Id. Other state ethics opinions adopting the per

se unethical view are Cal. Ethics Op. No 1989-106

(1989), N.J. Ethics Op. 714 (2008), Ohio Bd. Comm.

Op. 94-10 (1994), and S.C. Bar Ethics Op. 2005-17

(2005).

12

IV. Release-Dismissal Agreements Affecting

Private Actors Violate the Limits Established in

Rumery and Create Unconstitutional Incentives

for Prosecutors

The use of release-dismissal agreements to

relieve private parties of all potential civil liability,

even those who are not identified in the agreement

cannot be justified. Rumery allowed certain types of

agreements in highly circumscribed situations. It did

so somewhat reluctantly. This Court never espoused

what has now become widespread practice in

Alabama, and what is now presented by Mr.

Newsome’s petition. Indeed, all of the concerns

expressed by this Court in Rumery make it plain that

the types of agreements involved in Mr. Newsome’s

petition offend basic notions of fairness and should not

be allowed.

This Court presumes that civil lawsuits,

particularly those alleging public corruption or

misconduct should be filed and grievance should be

aired. See Rumery, 480 U.S. at 395-96 (Powell, J.,

plurality op.). And this Court was willing to let

release-dismissal agreements to interfere with that

presumption, but only to “protect public officials”

because some such lawsuits are meritless and

defending them is to “the detriment of the[

defendants] public duties,” which “is distinctly not in

the public interest.” See id. (emphasis added). That

rationale, of course, has no bearing whatsoever on

lawsuits involving private litigants. Private litigants

serve no public function, they have no public duties,

13

and our civil justice system presumes that lawsuits

are the way to determine whether private actors have

harmed one another. Release-dismissal agreements

for unidentified private parties undermines our civil

justice system—it hardly serves public needs.

Justice O’Connor’s concerns over agreements

not “directly related to [the prosecutor’s] criminal

justice function” become front and center with

agreements waiving private liability. See id. at 402.

Indeed, Justice O’Connor feared that releasedismissal agreements could be akin to “accept[ing] a

defendant’s plea to a lesser charge in exchange for the

defendant’s cash payment to the police officers who

arrested him” if the agreement did not clearly serve a

public interest—concerns such as rehabilitation,

allocation of criminal justice resources, the strength of

the evidence against the defendant, and the extent of

his cooperation with the authorities.” Id. at 401.

Private releases of course do not serve the public

interest. They serve only private interests, and are a

trade of the “private financial interest” of those who

aren’t directly related to the arrest, or, at least, are for

those without a public function in an arrest and

prosecution. See id.

Assembly-line uses of such waivers only

heighten these concerns. A “blanket policy” cannot

serve public interests based on individual

circumstances. Cain, 7 F.3d at 382-83. Waivers that

release unnamed persons, including private citizens,

have no hint of individualized consideration, much

less the “case-specific showing that the released civil

rights claims appeared to be marginal or frivolous at

the time the agreement was made and that the

14

prosecutor was in fact motivated by this reason.” See

id. What this Court is left with, instead, is the

appearance, if not the reality, that the prosecution has

sold its interests to private interests. See id.

Of course, release-dismissal agreements are

unethical in gross, and those involving trade-offs of

future financial harm to private persons who are not

even parties to the case are all the more

impermissible. A prosecutor advancing one such

agreement breaches his duty of loyalty to the state, in

favor of the unnamed private parties benefitting from

the release. See Joy & McMunigal, at 33-34. And he

does so by coercing waiver of rights not even directly

related to the criminal charges. See id.

Releases of private liability also violate the

fundamental requirement of the “disinterested

prosecutor.” See Young, 481 U.S. at 807. If it violates

due process, and “basic notions of fairness” for a

prosecutor with private interests that could be served

by a judgment to pursue a case, then how can a

prosecutor lawfully bargain with future civil liability

for private parties? See id. at 805. Just the same the

prosecutor “may be tempted to bring a tenuously

supported prosecution if such a course promises

financial or legal rewards for the private client.

Conversely, a prosecutor may be tempted to abandon

a meritorious prosecution if a settlement providing

benefits to the private client is conditioned on a

recommendation against criminal charges.” See id.

Are civil releases not such a private benefit? It “is a

fundamental premise of our society that the state

wield its formidable criminal enforcement powers in a

rigorously disinterested fashion, for liberty itself may

15

be at stake in such matters,” and for that same reason

release-dismissal agreements that benefit unnamed

private persons offend basic fairness. See id. at 810.

This Court should not “become the ‘enforcers’ of

these odious agreements,” and should grant the

Petition and hold that release-dismissal agreements

cannot waive civil liability for private actors. See

Dixon, 394 F.2d at 969.

V. The Unique Facts of this Case Present a Good

Vehicle to Limit Release-Dismissal Agreements

Waiving Liability for Private Actors

This Court should be deeply disturbed by the

prospect of any release-dismissal agreements that

attempt to waive civil liability for unidentified private

parties. That alone offends due process and the

premise of fundamental fairness. But this case

presents a compelling story of a blanket and deeply

unethical form of release agreement, coupled with

procedural irregularities that suggest an even greater

concern about the actions of the prosecution.

As recounted by Mr. Newsome’s petition, John

Bullock, a private citizen, filed the menacing criminal

complaint against Mr. Newsome. Brief, p. 13. But

Bullock, in conjunction with the prosecutor, agreed to

drop the charge. Brief, p. 17. The prosecution,

however, insisted on a blanket release-dismissal

agreement on a standard form that was apparently

used widely in the jurisdiction, and contained checkboxes for use in different cases. See App. 96-97. This

release did not have any specific consideration for the

facts of Mr. Newsome’s case, or articulate unique

16

reasons why a release-dismissal agreement served the

public prosecutorial interest. See App. 97. It was

completely silent on why such an agreement was

permissible, much less necessary to serve the ends of

public justice. See App. 96-98. The form contained a

release of all of Mr. Newsome’s civil and criminal

claims against countless governmental entities as

well as nongovernmental entities, complainants and

potential witnesses. App.97. The full release language

is nothing short of breathtaking:

The Defendant does hereby grant a full,

complete and absolute Release of all civil

and criminal claims stemming directly or

indirectly from this case to the State of

Alabama, its agents and employees,

including, but not limited to the District

Attorney for Shelby County, Alabama,

his agents and employees; to Shelby

County, Alabama, its agents and

employees, including, but not limited to

the Sheriff of said County, his agents and

employees, to any other law enforcement

or investigative agencies, public or

private, their agents and employees; to

any other complainants, witnesses,

associations,

corporations,

groups,

organizations or persons in any way

related to this matter, to also include the

Office of the Public Defender of Shelby

County, Alabama, its agents and

employees, from any and all actions

arising

from

the

instigation,

17

investigation, prosecution, defense, or

any other aspect of this matter.

App. 97 (emphasis added).

Thus when Mr. Newsome filed a civil action

against Clark A. Cooper, his former law firm Balch &

Bingham, LLP, Mr. Bullock and Claiborne Seier, the

full reach of the release-dismissal agreement became

clear. Only Mr. Bullock had any direct involvement

with the menacing charge. And Mr. Seier, Mr. Cooper

and the law firm had nothing at all to do with the

menacing complaint itself, and the allegations made

by Mr. Newsome seem only to relate to behind-thescenes efforts by those other defendants to either gin

up a reason for malicious charges or exploit the

charges once filed. Yet they were ultimately deemed

to be covered by the release, and the broader lawsuit

was dismissed in light of the agreement.

This Court should be deeply troubled by Shelby

County’s apparently systematic practice of requiring

the release of any and all possible claims from anyone,

so long as any tenuous relation to the criminal charges

can be imagined at a later date. What public interest

could such a release possibly serve? Perhaps more

significantly, what motives could elected prosecutors

have to utilize such agreements? As discussed above—

the answers are already clear. A prosecutor cannot be

independent when pushing for an agreement that

benefits private actors with little relationship to the

charges at issue. See Young, 481 U.S. at 807; Rumery,

480 U.S. at 401-02 (O’Connor, J., concurring). And the

temptation for impropriety is too great for this Court

to tolerate.

18

Even that is not the end of the problem

presented in this case. After Mr. Newsome filed a

lawsuit alleging corruption and a conspiracy to falsely

charge him with a crime, and, even more telling,

alleging that the release-dismissal agreement “was

obtained through fraudulent representations and a

conspiracy” (App. 111), the civil defendants appeared

to work in tandem with the court to make sure this

troubling release-dismissal agreement remained in

effect. Mr. Newsome ultimately expunged his

conviction and with it the release-dismissal

agreement. App.11. And based on that expunction, the

court overseeing his civil lawsuit vacated its prior

dismissal of the lawsuit based on the release. App.11.

But the defendants became involved in the

expungement case, despite likely having no standing

to do so, and presented the trial court with a draft

order vacating the expungement. App.25. The order,

however, was never entered into the State Judicial

Information System and did not have any legal effect.

App.25. Yet with concerted action by the defendants,

and a long run of litigation in the state courts, the

Supreme Court of Alabama ordered the draft order

entered, notwithstanding the troubling circumstances

surrounding its origin, but yet the order was never

entered. App. 130. This drew two dissenting opinions

from the Court. App.130. Indeed, as one of the

dissenting justices explained, the relevant order was

never entered into the Alabama State Judicial

Information System, and therefore the Alabama

appellate courts never had any jurisdiction to take

action, much less direct the reinstatement of the

19

release-dismissal agreement. See App. 130. 2

Whatever ultimately happened, or the legality of the

on-again off-again expungement order, the Rumery

Court warned others to be on the lookout for precisely

this type of potential “prosecutorial misconduct.” See

480 U.S. at 397.

This case presents much more than just a legal

technicality over the scope of release-dismissal

agreements. It goes to the basic fairness of common

practice in Shelby County Alabama. It potential

affects every one of CDLU’s constituents. This Court

should therefore grant the writ.

2 Incredibly, the vacatur of the expungement order still appears

not to have been entered, and the Alabama appellate courts were

forced to simply take judicial notice of the reinstated releasedismissal order. See App. 25. CDLU certainly has no confidence

that the entry of the release-dismissal agreement, and its

unlimited release of liability for unnamed private litigants was

on the up and up.

20

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Brian J. Zeiger, Esquire

Counsel of Record

Levin & Zeiger, LLP

1500 JFK Blvd, Suite 620

Philadelphia, PA 19102

(215) 546-0340

zeiger@levinzeiger.com

Counsel for Amicus Curiae