Riverside man loses appeal in malicious prosecution case

Roger Parker, held in pre-trial custody without an indictment or preliminary hearing for four years against the advice of line prosecutors, lost the appeal of his malicious prosecution case on March 5. In an unanimous ruling, three Ninth Circuit Judges affirmed a lower court's ruling that the defendants are immune from civil suits by law. None of the defendants are still at the Riverside District Attorney's Office. "The district court correctly concluded that absolute immunity shields (the defendants) from liability for Parker’s prolonged pre-trial detention," the court found. Parker was held on a murder charge, but the two Riverside line prosecutors who were assigned the case, Lisa DiMaria and Christopher Ross, believed he was innocent. Parker's confession to the murder, they both believed, was coerced after a lengthy interview. Ross found a jailhouse recording of another man confessing to the crime. Ross believed he was forced out of the Riverside DA's Office for his insistence of Parker's innocence. He brought his own lawsuit against the county for wrongful termination, which he lost in 2022. The defendants in Parker's case include Riverside County's managing prosecutors at the time of his detention: Sean Lafferty, now a Riverside Superior Court judge; Jeffrey Van Wagenen, now Riverside County's executive officer; and former Riverside District Attorney Paul Zellerbach. The trial court found, and the Court of Appeal agreed, that the defendants were acting as prosecutors, not administrators, when they directed Ross and DiMaria not to throw out the case. Prosecutors have blanket protection from malicious prosecution "Parker asserts that Zellerback, in his capacity as Riverside County District Attorney, established a policy of 'pursuing convictions at any cost and punishing any prosecutor who resisted,' which resulted in the line prosecutors refusing to fulfill their constitutional obligations, 'i.e., not prosecuting innocent people and turning over exculpatory evidence to the defense,' which in turn resulted in his unduly prolonged detention. He characterizes this policy as 'administrative' in nature because it related to 'the general operation' of the Riverside County District Attorney’s Office. We disagree. The alleged policy dictates the general “prosecutorial strategy' of the office, with the intent to direct the 'prosecutorial acts' of the office’s line prosecutors," the Ninth Circuit ruling says. Kimberly Hutchison spoke for Parker at oral arguments, held Dec. 4 “This was not an individual choice in Parker's case to withhold evidence. It was part of a longstanding custom and practice that this court actually called out in oral argument. Judge Kozinski noted that the Riverside District Attorney’s office was committing (evidence disclosure) violations and showing no desire to change that practice. Showing no shame in that practice and not admitting wrongdoing. That’s the problem here. Under the district court’s analysis, by deciding that this unconstitutional policy is not subject to (DA-wide liability), there is a huge gap in what is available to a criminal defendant whose rights are being violated. Someone like Mr. Parker, who never was convicted and yet spent four years in custody, would have no remedy for that violation if not for (civil rights protections). Because of what your honor recognized in terms of individual prosecutorial immunity, it is (office-wide liability) that needs to provide this kind of action for him. I say that because, absent this kind of liability, there’s no incentive for the District Attorney's Office to follow the law. They can have unconstitutional policies that they will never be liable for,” Hutchison said. “Part of the issue, also, is just poor lawyering by your clients at the trial court level, not asking for a preliminary hearing for four years, I mean, should have put the burden on the government to show what evidence they had to continue detaining him. I’m not mitigating what you said, but that’s part of the problem, at least in this cas,e for whatever reason, for four years, they never asked the government to show his cards,” said Ninth Circuit Judge Kenneth Lee. “I certainly understand the concern, your honor, but respectfully, that attorney did not have that (taped confession). So, going forward on a preliminary hearing with clearly what was only a false confession, but no alternative evidence to present, I’m not sure that that failure was really attributable to the defense attorney, rather to the county that deliberately held the (confession) that could have charged the result at the preliminary hearing,” Hutchison said. “But four years is such a long time to let defense counsel let that continue. IT seems that you’re suggesting we find an exception to the absolute immunity because these circumstances were so egregious. I don’t disagree with you, that the facts laid out are egregious, but that seems to be an argument that there should just be no immunity, which is something that we can’t decide. The Supreme Court has announced this doctrine. Not the Ninth Circuit. We’re bound by it. And then I think Judge Lee’s point is well taken. You’re saying there’s no remedy. There is. There is a malpractice claim here. That is one remedy. There are also bar complaints,” said Ninth Circuit Judge Bridget Bade. Hutchison said that those methods have issues, but, more so, that there needs to be liability against unconstitutional practices. “That is only talking about, basically, bad apples inside a prosecutor’s office. What we are talking about here is a county office that has an unconstitutional policy. So immunizing individual defendants, while that may be required by the Supreme Court, it doesn’t protect an entire office from having an unconstitutional policy that harms individuals. That is what we are acting the court to address,” said Hutchison. Arguing for the county, attorney Tony Sain said that the court needed to keep intact the immunity of the DA’s Office supervisors. “The absolute immunity is designed to protect the vigorous prosecution of crime. To protect society writ-large. If we chill that by allowing civil liability against individual prosecutors like the four defendant prosecutorial supervisors here, we are hurting ourselves as a society,” Sain said. His co-counsel, Abigail McLaughlin, said that the decision to not turn over the evidence was made by Ross, regardless of a policy. “Here what they are saying is that everybody knew about this (confession) and made the decision, the active decision, to not turn over that evidence. Which is specifically a prosecutorial decision,” McLaughlin said. “But if their bosses tell them to never turn over (evidence of innocence), the prosecutors aren’t making that decision, their bosses are,” said Ninth Circuit Judge Carlos Bea, “Well, in this case, your honor, the decision by the underlying district attorney Ross, he knew about the (confession), taking the facts as true, he wanted to turn it over. He brought (the confession) to his supervisors (Lafferty) and they didn’t say, well, per our policy, turn it over. The allegation in the complaint is that they said, in this specific matter, do not turn over the (confession),” McLaughlin said.