Prosecutorial immunity protects 3 defendants in former judge’s retaliation lawsuit, 5th Circuit says

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A Texas judge who was wrongfully convicted can only sue one of the four prosecutors she named in a lawsuit, a federal appeals court ruled Monday.

In its opinion, a three-judge panel of the 5th U.S. Circuit Court of Appeals at New Orleans held that former state district Judge Suzanne H. Wooten’s lawsuit against former county prosecutor Christopher Milner could proceed.

But prosecutorial immunity protected county prosecutor John Roach Sr.; Texas Gov. Greg Abbott, who was then-state attorney general; and Harry White, who was then-state assistant attorney general.

“We agree with the district court that, according to allegations we must accept as true, Milner was performing investigative functions that do not qualify for absolute immunity,” the panel said, pointing out that Milner, who led the special crimes division in Collin County, Texas, continued to investigate Wooten despite admitting that he didn’t have enough evidence against her.

Law360 and the Texas Lawyer have coverage.

Wooten filed a lawsuit in May 2018 alleging that the Collin County district attorney’s office investigated and prosecuted her in retaliation for unseating incumbent Judge Charles Sandoval in March 2008 in the Republican primary election. She went on to win the general election, and she took the bench in January 2009, according to the suit.

Prosecutors had accused her of accepting bribes in the form of campaign contributions during her 2008 campaign, and in 2011, she was convicted on nine criminal charges, including bribery, money laundering, tampering with records and organized criminal activity. Her campaign contributors were also convicted.

Wooten appealed her conviction after a Texas appeals court acquitted her campaign contributors, finding that prosecutors couldn’t prove that the contributions were bribes. The state agreed in 2017 that her conviction and sentence should be vacated.

In July 2018, the district court judge denied the defendants’ request to dismiss Wooten’s case, contending that while the prosecutors could be immune for their actions during prosecution, they may not be immune during a case’s investigation.

The 5th Circuit held Monday that Wooten didn’t prove that Abbott, White and Roach were functioning as investigators, and the allegations specific to Abbott only show that he oversaw the attorney general’s office during the time of the investigation.

“None of these allegations overcomes Abbott’s assertion of absolute prosecutorial immunity,” the panel said. “At best, they claim Abbott failed to intervene in acts by White that we have already concluded were not investigative and for which White is entitled to prosecutorial immunity.”

While the 5th Circuit also said Milner could be entitled to qualified immunity, which is available to law enforcement, the district court did not consider that issue.

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