Amicus Curiae Brief — Pottawattamie County, Iowa v. McGhee (2008) (No. 1065)

WIS CET FO

MAR 23 2003 @

No. 08-1065

IN THE

Supreme Court of the United States

POTTAWATTAMIE COUNTY, IOWA,

JOSEPH HRVOL, AND DAVID RICHTER,

Petitioners,

Ve

TERRY J. HARRINGTON

AND CURTIS W. MCGHEE JR.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

MOTION FOR LEAVE TO FILE BRIEF AS AMICI

CURIAE AND BRIEF OF THE NATIONAL

ASSOCIATION OF ASSISTANT UNITED STATES

ATTORNEYS AND NATIONAL DISTRICT

ATTORNEYS ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

Amy Howe Thomas C. Goldstein

HOWE & RUSSELL, P.C. (Counsel of Record)

7272 Wisconsin Ave. AKIN, GUMP, STRAUSS,

Suite 300 HAUER & FELD LLP

Bethesda, MD 20814 1333 New Hampshire

Ave., NW

Washington, DC 20036

(202) 887-4000

SSS

WiLSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

MOTION OF THE NATIONAL ASSOCIATION

OF ASSISTANT UNITED STATES ATTORNEYS

AND NATIONAL DISTRICT ATTORNEYS

ASSOCIATION FOR LEAVE TO FILE A BRIEF

AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

Pursuant to Rule 37.2 of the Rules of this Court,

the National Association of Assistant United States

Attorneys and the National District Attorneys

Association hereby move for leave to file the

accompanying brief as amici curiae in support of

petitioners.

The National Association of Assistant United

States Attorneys is the voice of Assistant United

States Attorneys in the Department of Justice and

Congress, helping to safeguard justice and promote

the interests of AUSAs. It was founded in 1993 to

protect, promote, foster and advance the mission of

AUSAs and their responsibilities in promoting and

preserving the Constitution of the United States,

encouraging loyalty and dedication among AUSAs in

support of the Department of Justice, and

encouraging the just enforcement of laws of the

United States. It is the “bar association” for the more

than 5400 AUSAs throughout the country and the

U.S. territories.

The National District Attorneys Association

(NDAA) is the largest and primary professional

association of prosecuting attorneys in the United

States. The association has approximately 7000

members, including most of the nation’s local

prosecutors, assistant prosecutors, investigators,

victim witness advocates, and paralegals. The

il

association’s mission is “[t]o be the voice of America’s

prosecutors and to support their efforts to protect the

rights and safety of the people.” NDAA provides

professional guidance and support to its members,

serves as a resource and education center, produces

publications, and follows public policy issues

involving criminal justice and law enforcement.

NDAA also files amicus briefs on issues relevant to

its members and mission, including briefs in this

Court in Van de Kamp v. Goldstein, 129 S. Ct. 855

(2009), and Davis v. Washington, 547 U.S. 813 (2006).

This motion is necessary because respondents’

counsel have refused consent to the timely written

request for consent to the filing of this brief.

Respectfully submitted,

Amy Howe Thomas C. Goldstein

HOWE & RUSSELL, P.C. (Counsel of Record)

7272 Wisconsin Ave. AKIN, GUMP, STRAUSS,

Suite 300 HAUER & FELD LLP

Bethesda, MD 20814 1333 New Hampshire

Ave., NW

Washington, DC 20036

(202) 887-4000

ill

TABLE OF CONTENTS

MOTION OF THE NATIONAL ASSOCIATION

OF ASSISTANT UNITED STATES ATTORNEYS

AND NATIONAL DISTRICT ATTORNEYS

ASSOCIATION FOR LEAVE TO FILE A BRIEF

AS AMICI CURIAE IN SUPPORT OF

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INTEREST OF AMICI CURIAE...............ccccceceeeeeeeeees 1

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

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iv

TABLE OF AUTHORITIES

Cases

Brady v. Maryland,

cen iopescsedoemenuseeevouqecnnssusnseecsios

Clanton v. Cooper,

129 F.3d 1147 (10th Cir. 1997)................. eee

Fox v. Tomczak,

No. 04 C 7309, 2006 WL 1157466 (N_D. Ill.

Be Re icttintaiiviss<cosnvensettercossesatsmietonseciasss

Giglio v. United States,

cons unccnsncsnscosesonenennseouiinsnies

Imbler v. Pachtman,

ee ID accsetacecsercccccorenvescscsoncecoes 4,5,6,8

Iowa S. Ct. Att’y Disciplinary Bd. v. Barry,

No. 08-1214, 2009 WL 415528 (lowa Feb. 20,

Iowa S. Ct. Att’y Disciplinary Bd. v. Borth,

728 N.W.2d 205 (Lowa 2007)...........cc:cseeeceeeeees

Koubriti v. Convertino, No. 07-13678, 2008 U.S.

Dist. LEXIS 107423 (E.D. Mich. Dec. 3, 2008)

Pearson v. Reed,

44 P.2d 592 (Cal. App. 1935) ..c.cccccccccesesesseeeeee.

Richir v. Village of Fredonia, N.Y.,

No. 05-CV-076, 2008 U.S. Dist. LEXIS 54012

(W.D.N.Y. July 14, 2008) .......... eee eeee eee

Tate v. Grose,

412 F. Supp. 487 (E.D. Pa. 1976).......cccscesee0es.

United States v. Hasting,

ee Ie I scccccccsscsccssconseccsessinscinrescesoos

Weinstein v. Mueller,

563 F. Supp. 923 (N.D. Cal. 1982)................. ee 4

Zahrey v. Coffee,

221 F.3d 342 (2d Cir. ZOOO) ..........ccccesscccesccccrnsceceees 3

Other Authorities

Bill Moushey, He’s Free After 4 Hard Years,

Pittsburgh Post-Gazette, Dec. 2, 2006, at Al .10, 11

Br. Amicus Curiae of U.S., Van de Kamp vu.

ee ID icccovcoceuescnsdadsasncensepanacinonssonee 7

Dee J. Hall, Clash of Lawyers Coming To A

Head, Wis. St. J., July 8, 2007, at Al.................... 10

Del Quentin Wilber, 6 Prosecutors No Longer

Part Of Legal Team in Stevens Case, Wash.

Post, Feb. 18, 2009, at AG ...............cccccceeeeeeeeseeeeees 12

Eric Lichtblau, Ex-Prosecutor In Terror Inquiry

Is Indicted, N.Y. Times, Mar. 30, 2006, at A18 ....12

John Stevenson, Nifong May Be Ouster No-

Show, Durham Herald-Sun, June 28, 2007, at

Mike Scarcella, Sealed Court Records,

Transcripts Released in Stevens Case, The

BLT: The Blog of Legal Times, Feb. 18, 2009...... 12

U.S. Dep't of Justice, Office of Professional

Responsibility Annual Report: 2005.................0..... 7

U.S. Dep’t of Justice, Office of Professional

Responsibility, available at

ID whiccaiiinissetincnncctcesnicceniscnesscuseneniion 8

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INTEREST OF AMICI CURIAE'

The National Association of Assistant United

States Attorneys and the National District Attorneys

Association submit this amici curiae brief in support

of petitioners Pottawattamie County, Iowa, Joseph

Hrvol, and David Richter. The interests of the amici

are set out in the accompanying motion.

SUMMARY OF ARGUMENT

Certiorari is warranted because the question

presented raises an important issue that is already

the frequent subject of litigation, and which is even

more likely to be frequently litigated if the decision

below is permitted to stand. The prospect that

prosecutors will face litigation and potential liability

imposed by civil damages over the conduct of their

official duties will chill prosecutorial efforts that are

necessary to combat and deter crime. The increase in

litigation will impose precisely the burdens on

prosecutors — in terms of both time and money — that

the doctrine of absolute immunity is intended to

preclude.

' Pursuant to Rule 37.2, counsel for amici certifies that

counsel of record for all parties received timely notice of its

intention to file an amici curiae brief at least ten days prior to

the due date for the amici curiae brief. A letter reflecting

petitioners’ consent to the filing of this brief is being lodged with

the Clerk of the Court. Pursuant to Rule 37.6, counsel for amici

states that no counsel for a party authored this brief in whole or

in part, and that no person other than amici, their members, or

their counsel made a monetary contribution to the preparation

or submission of this brief.

2

Nor is the remedy sought by respondents in this

case necessary to deter prosecutorial misconduct. To

the contrary, prosecutors who engage in misconduct

may be subject to discipline by a variety of

institutions, including the _ prosecutors’ offices

themselves, state bar associations, and the judges

before whom they appear. And in the most extreme

cases, prosecutors may themselves face criminal

sanctions for their misconduct.

ARGUMENT

I. The petition for certiorari demonstrates that

certiorari is warranted because the two issues raised

by petitioners — whether a criminal defendant’s

“substantive due process” rights are violated by the

improper gathering of evidence and whether

prosecutors are absolutely immune from liability for

introducing that evidence against a _ criminal

defendant at trial — arise frequently in litigation.

Amici are aware of still other similar cases that

demonstrate the recurring importance of the question

presented. The fact that the allegations in this case

are not outliers — but rather represent a common

tactic for evading settled principles of absolute

immunity — reinforces the conclusion that this

Court’s intervention is warranted.

In Clanton v. Cooper, 129 F.3d 1147 (1997), for

example, the Tenth Circuit allowed a Section 1983

suit to proceed when the plaintiff alleged that a

confession coerced from a witness resulted in the

piaintiffs wrongful imprisonment. The court of

appeals explained that the plaintiff could “contest the

voluntariness of [the witness’s] confession not based

on any violation of the [witness’s} constitutional

3

rights, but rather as a violation of her own

Fourteenth Amendment right to due process.” Id. at

1158. And in Fox v. Tomczak, No. 04 C 7309, 2006

WL 1157466, at *1 (N.D. Ill. Apr. 26, 2006), the court

rejected a prosecutor’s claim of absolute immunity

and allowed a due process claim under Section 1983

to proceed, explaining that “[sleveral other circuit

courts of appeal have found that there is a clearly

established constitutional due process right not to be

subjected to prosecution on the basis of false evidence

that was deliberately fabricated by the government.”

Id. at *2 (citing Second Circuit’s decision in Zahrey v.

Coffee, 221 F.3d 342 (2000), along with decisions of

the Ninth, First, Fourth, and Eighth Circuits); see

also, e.g., Richir v. Village of Fredonia, N.Y., No. 05-

CV-076, 2008 U.S. Dist. LEXIS 54012, at *2

(W.D.N.Y. July 14, 2008) (citing Zahrey, denying

prosecutors’ motion to dismiss with regard to claim

that prosecutors “manufactured false and misleading

evidence against her in violation of her right to due

process”).

Indeed, a district court in Michigan very recently

considered — and denied absolute immunity in — a

case virtually on all fours with this one. In Koubriti

v. Convertino, No. 07-13678, 2008 U.S. Dist. LEXIS

107423, at *1 (E.D. Mich. Dec. 3, 2008), the court

denied a motion to dismiss by a former Assistant U.S.

Attorney accused by a former defendant of

withholding exculpatory evidence and fabricating

evidence. In so doing, the court rejected the

defendant-prosecutor’s “contention that it is only the

use of this evidence, not its procurement that violates

[the defendant’s] substantive due process rights.”

Instead, the court explained, “liJmmunity cannot

4

extend to actions by a prosecutor that violate a

person’s substantive due process rights by obtaining,

manufacturing, coercing or fabricating evidence

before filing formal charges, even if the subsequent

use of that evidence is protected by absolute

immunity.” Id. at *14.

II. The court of appeals’ ruling, if not reversed,

will produce several entirely predictable negative

consequences on ongoing prosecutorial efforts. First

and foremost, it will lead to an increase in litigation

against prosecutors, as criminal defendants will seek

to circumvent the absolute immunity afforded to

prosecutors at trial by shoehorning their allegations

into claims focused on the allegedly improper

procurement of evidence by prosecutors,

notwithstanding that their convictions resulted from

the prosecutor’s use of that evidence at trial. As one

district court explained in granting a motion to

dismiss in a Section 1983 case alleging that

prosecutors in that case (including now-Senator

Arlen Specter) had “solicitfed] and knowingly us[ed]

perjured testimony” against a criminal defendant,

“[tlo allow such an allegation to defeat the

prosecutor's immunity would vitiate the Jmbler [v.

Pachtman, 424 U.S. 409 (1976)] holding. Anyone

against whom perjured testimony was used could

then force the prosecutor to court in a civil damage

action simply by reframing the claim to allege that

the perjured testimony was solicited.” Tate v. Grose,

412 F. Supp. 487, 488 (E.D. Pa. 1976). See also

Weinstein v. Mueller, 563 F. Supp. 923, 927 (N.D. Cal.

1982) (in case brought against then-AUSA Robert

Mueller, who subsequently served as director of the

FBI, citing Tate and finding “no difference here

5

between the knowing use of perjured testimony and

the solicitation of it. If prosecutorial immunity did

not cover the latter as well as the former, the

protections of Imbler would disappear simply by the

addition of another stock allegation.”).

The inevitable consequence of the prospect of

greater civil liability will be the chilling of the

essential exercise of wholly constitutional efforts to

prosecute criminal defendants. In the course of their

daily work, prosecutors are frequently required to

make dozens of decisions related to the prosecution of

their caseload. As this Court has acknowledged, the

prospect that a prosecutor will face liability for these

decisions creates “the possibility that [the prosecutor]

would shade his decisions instead of exercising the

independence of judgment required by his public

trust.” Jmbler, 424 U.S. at 423; see also id. at 424-25

(“A prosecutor is duty bound to exercise his best

judgment .... The public trust of the prosecutor’s

office would suffer if he were constrained in making

every decision by the consequences in terms of his

own potential liability in a suit for damages.”). If this

occurs, “[t]he work of the prosecutor would . . . be

impeded and we would have moved away from the

desired objective of stricter and ffairer law

enforcement.” Id. at 424 (citing Pearson v. Reed, 44

P.2d 592, 597 (Cal. App. 1935)). Indeed, the work of

a prosecutor would be completely stymied if a

defendant could file suit claiming a violation of civil

rights whenever prosecutors seek to convince

reluctant witnesses to testify notwithstanding efforts

by the defendant to intimidate them — efforts that are

unfortunately all too common in cases involving, for

example, gangs or domestic violence.

6

An increase in litigation will also impose

significant burdens on prosecutors in terms of both

time and money - precisely the burdens that absolute

immunity is intended to remove. In Jmbler, 424 U.S.

at 425, this Court reasoned that absolute immunity

was appropriate because, “if the prosecutor could be

made to answer in court each time such a person

charged him with wrongdoing, his energy and

attention would be diverted from the pressing duty of

enforcing the criminal law.” Indeed, this Court

recognized, absolute immunity was _ particularly

appropriate for prosecutors because “suits that

survived the pleadings would pose substantial danger

of liability even to the honest prosecutor,” who “would

face greater difficulty in meeting the standards of

qualified immunity than other’ executive’ or

administrative officials” because he “frequently act[s]

under serious constraints of time and_ even

information” and thus “inevitably makes many

decisions that could engender colorable claims of

constitutional deprivation. Defending these

decisions, often years after they were made, could

impose unique and intolerable burdens upon a

prosecutor responsible annually for hundreds of

indictments and trials.” Jd. at 425-26.

IjI. Contrary to respondent McGhee’s assertion

that “bad police and bad prosecutors are held

accountable in civil rights cases like this one or not at

all,” McGhee BIO 20, the remedy sought by

respondents (and upheld by the Eighth Circuit in this

case) is not necessary “to deter objectionable

prosecutorial conduct,” because there are other

“means more narrowly tailored to” do so. United

States v. Hasting, 461 U.S. 499, 506 (1983). Compare

7

also, eg., McGhee BIO 19 (positing that

“[p]rosecutors would be free to fabricate evidence

during criminal investigations because they would

know there was virtually no possibility of ever being

punished for it”).

a. First, as the United States has recently

explained, “[p]rosecutorial offices . . . often have their

own internal mechanisms to address prosecutorial

misconduct and ensure that prosecutors, including

supervisors, meet the highest standards of ethical

misconduct.” Br. Amicus Curiae of U.S., Van de

Kamp v. Goldstein (No. 07-854) at 32. At the federal

level, the Department of Justice’s Office of

Professional Responsibility (“OPR”) has responsibility

for investigating “allegations of professional

misconduct made against Department of Justice

(DOJ) attorneys where the allegations relate to the

exercise of the attorney’s authority to investigate,

litigate, or provide legal advice,” including allegations

similar to those at issue in this case. U.S. Dep’t of

Justice, Office of Professional Responsibility Annual

Report: 2005, at 1 (“OPR 2005 Annual Report”) (OPR

investigates allegations that include violations of

Brady v. Maryland, 373 U.S. 83 (1963), Giglio uv.

United States, 405 U.S. 150 (1972), and Federal Rule

of Criminal Procedure 16, as well as allegations of

improper coercion or intimidation of witnesses); see

also Hasting, 461 U.S. at 506 n.5 (1983) (“Here, for

example, the court could have dealt with the

offending argument by asking the Department of

Justice to initiate a disciplinary proceeding against

him.... ”). OPR-— which is made up of twenty-two

permanent career attorneys and several detailees

from various U.S. Attorneys’ offices — operates

8

independently within the Department of Justice,

reporting directly to the Attorney General. See U.S.

Dep’t of Justice, Office of Professional Responsibility,

available at www.usdoj.gov/opr/ (visited Mar. 19,

2009).

OPR’s investigations of prosecutorial misconduct

may arise from complaints from a variety of sources,

including private attorneys and parties, judicial

referrals, and_ self-reporting by Department

employees. See OPR 2005 Annual Report 5. OPR

itself also conducts regular searches of electronic

databases to locate any judicial criticism of federal

prosecutors. OPR reports the results of its

investigations to the Office of the Deputy Attorney

General and the relevant DOJ management officials,

including “a recommended range of discipline” for

attorneys who are found to have engaged in

misconduct. DOJ officials are then responsible for

imposing “any disciplinary action that may be

appropriate,” although they cannot depart from

OPR’s recommendations without advance notification

to the Office of the Deputy Attorney General. Jd. at

2. In the cases in which OPR found professional

misconduct, disciplinary action that included

suspensions and reprimands was initiated in nearly

two-thirds of them.

b. At the federal, state, and local levels,

prosecutors are also subject to discipline by state bar

associations. As this Court explained in Jmbler, 424

U.S. at 429, “a prosecutor stands perhaps unique,

among officials whose acts could deprive persons of

constitutional rights, in his amenability to

professional! discipline by an association of his peers.

These checks undermine the argument that the

9

imposition of civil liability is the only way to insure

that prosecutors are mindful of the constitutional

rights of persons accused of crime.”

When OPR concludes that federal prosecutors

have engaged in misconduct — by finding either

intentional misconduct or “that a subject attorney

acted in reckless disregard of a_ professional

obligation or standard,” it automatically notifies “the

bar counsel in each jurisdiction in which an attorney

found to have committed professional misconduct is

licensed,” OPR 2005 Annual Report 3, of both the

finding and any discipline imposed. OPR will also

respond to “the bars’ requests for additional

information on those matters.” The bar association

(which, of course, could also learn of potential

misconduct by federal prosecutors from independent

sources, including the bar counsel’s own review of

judicial opinions) may conduct its own investigation

of the misconduct, and may also decide to impose its

own discipline.

State prosecutors are similarly subject to

discipline by state bar associations for their

misconduct. In Iowa, for example, petitioners as

practicing attorneys were subject to _ several

applicable lowa Court Rules, including Rule 32.3.8(a)

(prohibiting prosecutor from prosecuting a charge

that he knows is not supported by probable cause)

and Rule 32.3.8(d) (violation of lowa Rules to

knowingly fail to disclose exculpatory evidence).

There is no statute of limitations for the filing of an

attorney disciplinary complaint, which may be filed

by “any person, firm, or other entity,” Iowa Ct. R.

34.1, with the Iowa Supreme Court Attorney

Disciplinary Board — which may also initiate an

10

investigation or disciplinary action on its own, Iowa

Ct. R. 34.5. Possible sanctions could include a

private admonition, public reprimand, or suspension

or revocation of the prosecutor’s law license. Iowa Ct.

Rs. 34.11, 35.9, 36.16. See, e.g., lowa S. Ct. Att’y

Disciplinary Bd. v. Borth, 728 N.W.2d 205 (lowa

2007) (publicly reprimanding assistant county

attorney with no prior ethical violations for

misconduct that included violation of rule prohibiting

prosecutors from undertaking criminal defense work

and violating ethical rules in negotiating plea

bargains); Jowa S. Ct. Att’y Disciplinary Bd. v. Barry,

No. 08-1214, 2009 WL 415528, at *12 (lowa Feb. 20,

2009) (law license of county attorney — who had

already been removed from office — suspended

indefinitely, with no possibility of reinstatement for

one year; misconduct included making a series of

illegal plea agreements that required defendants to

donate money to sheriffs office, which then used

money to “purchase weapons for the department, to

pay lattorney’s] cell phone bills, and to purchase a

vehicle for [his] use”).?

2 See also John Stevenson, Nifong May Be Ouster No-

Show, Durham Herald-Sun, June 28, 2007, at Al (prosecutor in

Duke lacrosse case stripped of law license by North Carolina

state bar); Dee J. Hall, Clash of Lawyers Coming To A Head,

Wis. St. J., July 8, 2007, at Al (prosecutor under investigation

by state authorities for lying and withholding evidence from

defense; could face public reprimand); Bill Moushey, He’s Free

After 4 Hard Years, Pittsburgh Post-Gazette, Dec. 2, 2006, at Al

(fired district attorney also reported to state disciplinary board

for investigation).

11

c. Prosecutors may also face a variety of

additional sanctions as a consequence of their

misconduct. First and foremost, they may lose their

jobs. This is true not only for line attorneys, but also

for the chief prosecutor in a jurisdiction, who may be

subject to removal from office under state law or — if

elected — may be defeated at the polls. See, e.g., Bill

Moushey, He’s Free After 4 Hard Years, Pittsburgh

Post-Gazette, Dec. 2, 2006, at Al (assistant district

attorney fired for misconduct during _ cross-

examination of key witness; charges against

defendant dropped); Jowa S. Ct. Att’y Disciplinary Bd.

v. Barry, No. 08-1214, 2009 WL 415528, at *1 (lowa

Feb. 20, 2009) (county attorney removed by county

district court in light of finding that attorney had

“breached his duties knowingly and with a purpose to

do wrong”); John Stevenson, Nifong May Be Ouster

No-Show, Durham Herald-Sun, June 28, 2007, at Al

(reporting on effort to seek removal of Duke lacrosse

prosecutor under North Carolina law permitting chief

judge in a jurisdiction to remove district attorneys for

certain types of misconduct).

Second, prosecutors may be sanctioned by the

judges before whom they appear. See, e.g., United

States v. Hasting, 461 U.S. 499, 506 n.5 (1983) (“The

Court also could have publicly chastened the

prosecutor by identifying him in his opinion.”).

Indeed, in the recent trial of Senator Ted Stevens, the

district court held several federal prosecutors in

contempt for their failure to turn over documents

relating to alleged prosecutorial misconduct. Del

Quentin Wilber, 6 Prosecutors No Longer Part Of

12

Legal Team in Stevens Case, Wash. Post, Feb. 18,

2009, at A6.°

Third, in truly egregious cases, prosecutors may

themselves face criminal sanctions for their

misconduct. One recent example is the case of four

Muslim men aecused of being part of a “sleeper”

terrorist cell in Detroit. When allegations of

prosecutorial misconduct that included suppression

of evidence later surfaced, the Department of Justice

not only sought dismissal of all terrorism charges

against the defendants, but it also brought criminal

charges against the prosecutor himself for conspiring

“to present false evidence at trial and to conceal

inconsistent and potentially damaging evidence from

the defendants.” Eric Lichtblau, Ex-Prosecutor In

Terror Inquiry Is Indicted, N.Y. Times, Mar. 30, 2006,

at Al8.

d. There is no evidence that the further prospect

of civil liability is necessary to deter prosecutorial

misconduct. A defendant who believes that he has

been the subject of unlawful or unconstitutional

actions by a prosecutor has complete and unfettered

access to the existing disciplinary regimes applicable

to state and local prosecutors. State officials, state

bars, and judges all stand ready to ensure the proper

functioning of the prosecutorial system. By contrast,

* Those prosecutors were subsequently removed from the

government’s legal team addressing misconduct allegations, and

OPR is apparently investigating the misconduct allegations and

contempt findings. Mike Scarcella, Sealed Court Records,

Transcripts Released in Stevens Case, The BLT: The Blog of

Legal Times, Feb. 18, 2009.

13

the prospect that a prosecutor’s interactions with a

witness may later be second-guessed by a civil jury —

often many years later, when recollections have failed

and relevant evidence is no longer available — poses a

direct threat to the orderly prosecutorial function.

CONCLUSION

For the foregoing reasons, as well as those

outlined in the petition, certiorari should be granted.

Alternatively, this Court should call for the views of

the Solicitor General.

Respectfully submitted,

Amy Howe Thomas C. Goldstein

HOWE & RUSSELL, P.C. (Counsel of Record)

7272 Wisconsin Ave. AKIN, GUMP, STRAUSS,

Suite 300 HAUER & FELD LLP

Bethesda, MD 20814 1333 New Hampshire

Ave., NW

Washington, DC 20036

(202) 887-4000

March 23, 2009