Lawlor v. Connelly
RULING granting 9 Motion to Dismiss. Signed by Judge Janet C. Hall on 5/5/2011. (Simpson, T.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CIVIL CASE NO.
MAY 5, 2011
RULING RE: DEFENDANT’S MOTION TO DISMISS (DOC. NO. 9)
Plaintiff, Robert Lawlor, is a former officer of the Hartford Police. Defendant John
Connelly is a former Connecticut State’s Attorney. After an incident in which Lawlor
used deadly force in the line of duty, Connelly applied for a special, one-person grand
jury to investigate and report on whether there was probable cause to arrest Lawlor.
This unusual, Connecticut state grand jury process ultimately led to a criminal
prosecution against Lawlor. After he was acquitted following trial, Lawlor brought this
action pursuant to 42 U.S.C. § 1983. Lawlor alleges that Connelly failed to disclose
exculpatory evidence at three stages prior to trial: (1) when applying for the
appointment of the grand jury; (2) during the grand jury investigation; and (3) after that
investigation, when the case was turned over to another state’s attorney for trial.
Connelly has filed a Motion to Dismiss, arguing that, as a prosecutor, he is
protected by absolute immunity for the conduct alleged. This Motion presents two
issues of first impression: (1) whether absolute immunity applies to a prosecutor’s
conduct in seeking appointment of Connecticut’s unusual, investigatory grand jury; and,
(2) whether absolute immunity applies to a prosecutor’s presentation of evidence to
such a grand jury. The court answers both of these questions in the affirmative. The
court also holds that Connelly is entitled to absolute immunity for the claim that he failed
to disclose exculpatory information to his colleague, who was assigned to prosecute the
case against Lawlor. Accordingly, Connelly’s Motion to Dismiss is granted.
While investigating illegal firearms activity, Lawlor shot both the driver and
passenger of a moving vehicle, resulting in the passenger’s death. Complaint ¶¶ 10,
11. Lawlor claims that he fired upon the car because the driver was accelerating
towards Lawlor’s partner in a manner that posed an imminent danger and because the
passenger appeared to be raising a gun. Id. ¶ 10. Lawlor also claims that his partner
later confirmed to their supervisor that the car was being “operated in a manner that
presented a grave danger.” Id. ¶ 15. The Complaint alleges that Connelly knew about
the partner’s statement, id., and that Connelly maliciously or recklessly failed to disclose
that statement while seeking, and while assisting, a grand jury investigation, id. ¶¶
The investigatory grand jury at issue in this case is a creature of Connecticut
statute, and it differs in significant respects from a traditional grand jury. See Connelly
v. Doe, 213 Conn. 66, 70-71(1989) (“[T]he one-man investigatory grand jury is purely a
creature of statute” and “has no common law power”). Connecticut statute provides
that, upon application of a state’s attorney or a state judge, an investigatory grand jury
may be appointed in order to conduct “an investigation to determine whether or not
there is probable cause to believe that a crime or crimes have been committed.” Conn.
Gen. Stat § 54-47c(a). This investigatory grand jury is unusual insofar as it may consist
of a single grand juror, who must be a judge or retired judge, or of a panel of judges.
Conn. Gen. Stat. § 54-47b(3).1 In addition, “[t]he judge or referee who is appointed to
conduct an inquiry has no authority to issue an indictment. His sole function is to
investigate and report his findings to the court.” In re Investigation of the Grand Juror
into the Bethel Police Department, 188 Conn. 601, 604 (1982). “Investigating grand
juries neither try nor condemn nor accuse; they only inquire and report.” Id. at 605
(emphasis in original).
State prosecutors may be involved in the investigatory grand jury process at two
stages. First, as noted above, only a state judge or a state’s attorney may apply for the
appointment of such a grand jury. Conn. Gen. Stat. § 54-47c(a). Second, once the
grand jury is appointed, it “may . . . seek the assistance of the chief state’s attorney or
state’s attorney who filed the application, or his designee.” Id. § 54-47f(a). A
prosecutor appointed to assist the grand jury may be authorized to subpoena witnesses
and documents, see id. § 54-47f(b); may file criminal complaints to enforce those
subpoenas, id. § 54-47f(c); and may examine the witnesses, id. § 54-47f(d). If
appointed to assist, the state’s attorney must “disclose to the investigatory grand jury
any exculpatory information or material in his possession, custody or control concerning
any person who is a target of the investigation.” Id. § 54-47f(f).
Lawlor’s Complaint alleges that Connelly applied for an investigatory grand jury
to inquire into the shooting incident. Complaint ¶ 12. A grand jury, consisting of a
Conn. Gen. Stat. § 54-47(b)(3) provides that the single grand juror may be a judge or
“constitutional state referee.” A constitutional state referee is a Connecticut judge who has reached the
mandatory retirement age of 70. See Conn. Const. art. 5, § 6. As a referee, he exercises the power of a
judge of the Superior Court on matters referred to him by the Court. Id.; Conn. Gen. Stat. § 51-50f.
single Connecticut Superior Court judge, was appointed, and he appointed Connelly to
assist in the investigation. Id. ¶ 13; Pl. Opp. at 1; Def. Mem. at 1-2. Lawlor alleges that
Connelly failed to disclose exculpatory information—in particular, the statement made
by Lawlor’s partner—at three stages in the process leading to Lawlor’s prosecution.
First, according to the Complaint, Connelly’s application for appointment of the grand
jury “contained materially incorrect information for which Mr. Connelly vouched in an
affidavit.” Complaint ¶ 12. Second, the Complaint alleges that Connelly withheld
exculpatory information from the investigatory grand jury after Connelly was appointed
to assist in the investigation. Id. ¶¶ 14-15, 26-27. Third, the Complaint alleges that,
after the grand jury investigation, Connelly failed to disclose the exculpatory information
to the prosecutor assigned to try the case. Id. ¶ 20. Lawlor claims that, if this
exculpatory information had been disclosed at one of these stages, he would not have
been arrested and subjected to prosecution. Id. ¶¶ 21, 28, 37.
Prosecutors are protected by an absolute immunity when performing certain of
their responsibilities, but only qualified immunity when performing other tasks. See,
e.g., Burns v. Reed, 500 U.S. 478 (1991) (holding that a prosecutor was protected by
absolute immunity for preparing and arguing a warrant application, but not for providing
legal advice to investigating police officers). When a defendant moves to dismiss upon
a claim of absolute prosecutorial immunity, the court takes the plaintiff’s allegations to
be true, Kalina v. Fletcher, 522 U.S. 118, 122 (1997) (citing Buckley v. Fitzsimmons,
509 U.S. 259, 261 (1993)), and the defendant bears the burden of showing that he is
entitled to absolute immunity, Buckley, 509 U.S. at 269. “[T]he official seeking absolute
immunity bears the burden of showing that such immunity is justified for the function in
question. The presumption is that qualified rather than absolute immunity is sufficient to
protect government officials in the exercise of their duties.” Burns, 500 U.S. at 486-87
Whether or not a prosecutor’s conduct is protected by absolute immunity
depends upon the function he was performing. Kalina, 522 U.S. at 127 (“we examine
the nature of the function performed, not the identity of the actor who performed it”).
Absolute immunity generally applies where a prosecutor is performing his
responsibilities as a state’s advocate and an officer of the court, or where a prosecutor
is engaged in conduct that is intimately connected to judicial proceedings or the
initiation of prosecution. See Van de Kamp v. Goldstein, 555 U.S. 335, ---, 129 S. Ct.
855, 861 (2009) (collecting cases); Buckley, 509 U.S. at 273 (“acts undertaken by a
prosecutor in preparing for the initiation of judicial proceedings or for trial, and which
occur in the course of his role as an advocate of the State, are entitled to the protections
of absolute immunity”). In contrast, “absolute immunity may not apply when a
prosecutor is . . . instead engaged in other tasks, say, investigative or administrative
tasks.” Van de Kamp, 129 S. Ct. at 861 (citing Imbler v. Pachtman, 424 U.S. 409, 431
n.33 (1976)) (emphasis added). However, some tasks that can be described as
administrative or investigative may qualify for absolute immunity. See, e.g., Van de
Kamp, 129 S. Ct. at 861-62 (holding that failure to train and provide information sharing
systems are administrative tasks that may be protected by absolute immunity); Buckley,
509 U.S. at 273 (investigatory functions that relate to an advocate’s preparation for the
initiation of prosecution or for judicial proceedings are entitled to absolute immunity);
Warney v. Monroe County, 587 F.3d 113, 123-25 (2d Cir. 2009) (holding that delaying
release of exonerating evidence while conducting further investigation was protected by
Alleged Misconduct in the Application for a Grand Jury
The Complaint alleges that Connelly’s application for an investigatory grand jury
“contained materially incorrect information for which Mr. Connelly vouched in an
affidavit.” Complaint ¶ 13. This conduct is protected by absolute immunity.
In Burns, the Supreme Court held that prosecutors are entitled to absolute
immunity when they perform the role of an attorney by preparing, filing, and “appearing
before a judge and presenting evidence in support of a motion for a search warrant.”
500 U.S. at 491. Although a search warrant is an investigative tool, the Court explained
that such actions “clearly involve the prosecutor’s ‘role as advocate for the State,’ rather
than his role as ‘administrator or investigative officer.’” Id. “[S]ince the issuance of a
search warrant is unquestionably a judicial act, appearing at a probable-cause hearing
is ‘intimately associated with the judicial phase of the criminal process.’” Id. at 492
(quoting Imbler, 424 U.S. at 430).
Like an applicant for a search warrant, a prosecuting attorney seeking
appointment of an investigatory grand jury must apply to a judicial body for a special
investigative tool. Connecticut law provides the following process:
(a) Any judge of the Superior Court, Appellate Court or
Supreme Court, the Chief State's Attorney or a state's
attorney may make application to a panel of judges for an
investigation into the commission of a crime or crimes
whenever such applicant has reasonable belief that the
administration of justice requires an investigation to
determine whether or not there is probable cause to believe
that a crime or crimes have been committed.
(b) Each application for an investigation into the commission
of a crime or crimes shall be made in writing upon oath or
affirmation to a panel of judges. . . .
Conn. Gen. Stat. § 54-47c(a). The statute further provides that a prosecutor must
support the application with specific kinds of information, including “a full and complete
statement of the facts and circumstances relied upon by the applicant to justify his
reasonable belief that the investigation will lead to a finding of probable cause that a
crime or crimes have been committed,” id. § 54-47c(b), and a statement of any “other
normal investigative procedures” that have been used and an explanation of why further
use of such procedures is not likely to suffice, id. § 54-47c(c).
The Burns decision therefore compels the conclusion that Connelly is protected
by absolute immunity for his actions in preparing and filing the application for an
investigative grand jury. First, like the prosecutor in Burns, Connelly was performing a
task assigned by law to a state’s attorney. Conn. Gen. Stat. § 54-47c(a); see Burns,
500 U.S. at 491 n.7 (noting that in the jurisdiction at issue only a prosecutor, not a police
officer, could apply for a search warrant). Second, the preparation and filing of an
application for an investigatory grand jury is “intimately associated with the judicial
phase of the criminal process,” because the decision whether to approve such an
application is “unquestionably a judicial act.” Burns, 500 U.S. at 492; see also Conn.
Gen. Stat. § 54-47d(a) (assigning the decision to “approve the application and order
an investigation” to a three judge panel (emphasis added)). Third, although Connelly
was not seeking an indictment or a conviction, he was, nonetheless, acting as
“advocate for the State.” Burns, 500 U.S. at 491. A prosecutor’s application for an
investigatory grand jury must be based upon his “reasonable belief that the
administration of justice requires an investigation,” Conn. Gen. Stat § 54-47c(a), and
supported by a statement of facts and circumstances “justify[ing] his reasonable belief
that the investigation will lead to a finding of probable cause,” id. § 54-47c(b). Thus, an
application reflects the prosecutor’s judgment that the interests of the state require a
grand jury investigation and his advocacy in favor of that view.
The allegation that Connelly “vouched” for the information in the application does
not support a different conclusion. Lawlor argues that it does, relying on Kalina v.
Fletcher, 522 U.S. 118 (1997). In Kalina, the Supreme Court found it “quite clear” that a
prosecutor’s preparation and filing of an information and a motion for an arrest warrant
were protected by absolute immunity. Id. at 129. However, the Court withheld absolute
immunity solely with respect to the prosecutor’s act of “personally attesting to the
averments” in a third document submitted in support of the motion for the arrest
warrant.2 Id. The Court refused to grant absolute immunity because, “[t]estifying about
the facts is the function of the witness, not of the lawyer. . . . [T]he only function that she
performs in giving sworn testimony is that of a witness.” Id. at 130-31. The Court
emphasized that the certification was a “distinct” component of the application, id. at
131, and that swearing to it was a task that any competent witness could perform:
“Although the law required that document to be sworn or certified under penalty of
perjury, neither federal nor state law made it necessary for the prosecutor to make that
The Court acknowledged that “the preparation and filing of [the certification] was part of the
advocate’s function,” Kalina, 522 U.S. at 129, and suggested that “even the selection of the particular
facts to include in the certification” would be protected by absolute immunity, id. at 130.
certification. In doing so, petitioner performed an act that any competent witness might
have performed.” Id. at 129-30.
Here, by contrast, Connecticut law requires that the “application . . . shall be
made in writing upon oath or affirmation,” Conn. Gen. Stat. § 54-47c(b), by “[a]ny judge
of the Superior Court, Appellate Court or Supreme Court, the Chief State's Attorney or a
state’s attorney,” id. § 54-47c(a). It does not identify any “distinct” evidentiary
component that could be sworn to by any other competent witness. Much of the
information that must be included in the application is information that only the applicant
is distinctively competent to provide and affirm, such as the “statement of the facts
concerning all previous applications known to the applicant,” Conn. Gen. Stat. § 5447c(b), and a “statement of the reasons for the applicant’s belief that the appointment of
an investigatory grand jury . . . will lead to a finding of probable cause,” id. § 54-47c(c).
Every indication given in the statute is that it is the applying prosecutor who must swear
to the application. Therefore, in “vouching” for the information in the application,
Connelly did not perform a function that any witness could have performed. See Kalina,
522 U.S. at 129-30. He performed a task assigned by law to a judge or state’s attorney.
In sum, a prosecutor’s role in preparing and filing an application for an
investigatory jury pursuant to Conn. Gen. Stat. § 54-47c is akin to the court-related
advocacy functions that have been recognized to be protected by absolute immunity.
See Burns, 500 U.S. at 491-92; see also Kalina, 522 U.S. at 129. Therefore, Connelly
is entitled to absolute immunity with respect to his preparation and filing of such an
Alleged Misconduct During the Grand Jury Investigation
The Complaint alleges that, after Connelly was appointed to assist the
investigatory grand jury, Connelly “knowingly withheld exculpatory evidence and
intentionally misrepresented the fact that he possessed exculpatory evidence by
refusing to offer evidence” that would tend to indicate that Lawlor’s use of force was
justified. Complaint ¶ 15. “Connelly . . . falsely represented to the grand jury that he
possessed no exculpatory evidence, a fact he either knew to be false or recklessly
represented.” Complaint ¶ 18. Connelly is entitled to absolute immunity for claims
arising out of this conduct.
The Second Circuit has repeatedly held that a prosecutor is entitled to absolute
immunity for conduct before a traditional grand jury. See, e.g., Bernard v. County of
Suffolk, 356 F.3d 495, 505 (2d Cir. 2004) (“we conclude that, regardless of defendants’
political motives, absolute immunity shields them from suit pursuant to § 1983 . . . for
any misconduct in the presentation of evidence to the grand juries”); Pinaud v. County
of Suffolk, 52 F.3d 1139, 1149 (2d Cir. 1995) (holding that prosecutors are absolutely
immune from claims of presenting false evidence to the grand jury); Hill v. City of New
York, 45 F.3d 653, 661 (2d Cir. 1995) (“we, along with several sister circuits, have
consistently stated that prosecutors are immune from § 1983 liability for their conduct
before a grand jury”).3
Lawlor claims that, in Barbera v. Smith, 836 F.2d 96 (2d Cir. 1987), the Second Circuit rejected
a prosecutor’s claim to absolute immunity for conduct “before a federal grand jury with power to indict.”
Opp. at 6. The claim in Barbera was based on the prosecutor’s failure to provide police protection to a
person who had agreed to provide information during an ongoing investigation. Barbera, 836 F.2d at 98,
101. The Second Circuit rested its holding on the fact that the prosecutor’s activities “at the time of the
alleged conduct herein seem to have involved primarily the direction of an investigation by police and
The only apparent basis for distinguishing these holdings is that a traditional
grand jury has the power to indict, whereas the investigatory grand jury at issue here
can “only inquire and report.” In re Investigation of the Grand Juror, 188 Conn. at 605.
This distinction does not warrant a different result in this case. Investigation is one of
the central functions of a traditional grand jury as well. See, e.g., Branzburg v. Hayes,
408 U.S. 665, 688 (1972) (a grand jury’s “task is to inquire into the existence of possible
criminal conduct”); In re Investigation of the Grand Juror, 188 Conn. at 605 (“grand
juries of the indicting type do not try, but enquire” (quotation omitted)). A traditional
grand jury may carry out that investigative function for considerable time before
expecting or intending to indict anyone. See United States v. Williams, 504 U.S. 36, 48
(1992) (“the grand jury may investigate merely on suspicion that the law is being
violated, or even because it wants assurance that it is not” (emphasis added; quotation
omitted)); United Stated v. Dionisio, 410 U.S. 1, 15-16 (1973) (“a sufficient basis for an
indictment may only emerge at the end of the investigation when all the evidence has
been received”). Yet, the Second Circuit has held that absolute immunity applies to a
prosecutor’s conduct before a traditional grand jury without limiting that holding to the
period in which a grand jury is narrowing in upon an indictment. See Bernard, 356 F.3d
at 498-500, 505 (holding that absolute immunity applied to claims that prosecutors used
the grand jury to “pursue a series of politically motivated investigations and
other law enforcement personnel.” Id. at 101. That type of investigatory conduct is not what is alleged
Lawlor provides no page citation for the claim that the Barbera case involved the prosecutor’s
conduct before a grand jury. On its own reading, the court finds only a passing reference to the fact that
the cooperator had “agreed to testify . . . before a federal grand jury.” Id. at 101. Contrary to Lawlor’s
reading, the Barbera opinion acknowledges that absolute immunity applies to a prosecutor’s “presentation
of evidence to a grand jury.” Id. at 99-100 (citing Maglione v. Briggs, 748 F.2d 116 (2d Cir. 1984) (per
indictments”); Maglione, 748 F.2d at 118 (acknowledging that a claim based on a
prosecutor’s pursuit of an investigation and an indictment might have survived if there
was evidence “that he was performing investigatory acts apart from the grand jury
inquiry” (emphasis added)). Thus, Second Circuit precedent supports application of
absolute immunity to conduct before a grand jury, regardless of whether that grand jury
is engaged in an investigation or issuing an indictment.
This conclusion finds further support in the case law drawing the distinction
between an advocate’s conduct that is protected by absolute immunity and investigative
conduct that is protected by qualified immunity. In Buckley, the Supreme Court held
that prosecutors were not entitled to absolute immunity for fabrication of evidence
“during the preliminary investigation of an unsolved crime.” Id. at 274-75. The conduct
at issue occurred “during the period before they convened a special grand jury to
investigate the crime.” Id. at 274. The Buckley grand jury was empaneled “well after
the alleged fabrication of false evidence.” Id. The Court emphasized that, during that
period, the prosecutors were not acting as “officer[s] of the court,” but were instead
performing “investigative functions normally performed by a detective or police officer.”
Id. at 273 (emphasis added). Rather than holding that all investigative work is not
protected by absolute immunity, the Buckley Court adopted a more nuanced line:
A prosecutor’s administrative duties and those investigatory
functions that do not relate to an advocate's preparation for
the initiation of a prosecution or for judicial proceedings are
not entitled to absolute immunity. We have not retreated,
however, from the principle that acts undertaken by a
prosecutor in preparing for the initiation of judicial
proceedings or for trial, and which occur in the course of his
role as an advocate for the State, are entitled to the
protections of absolute immunity.
Buckley, 509 U.S. at 273 (emphasis added). Thus, the relevant distinction is not simply
between investigation and litigation conduct, but between investigative work associated
with the police investigation phase of the criminal process and other work, including
investigation, that is associated with the judicial phase of the criminal process.4
This distinction appears throughout the case law on prosecutorial immunity. As
discussed above, the Supreme Court in Burns, held that a prosecutor’s advocacy in
support of a search warrant “involve[s] the prosecutor’s role as advocate for the State,
rather than his role as ‘administrator or investigative officer.” 500 U.S. at 492 (quotation
omitted). In Burns, the Court also held that the prosecutor was not entitled to immunity
for providing legal advice and guidance to the investigating police officers, prior to the
search warrant application. Id. at 493-94. The Court explained, “We do not believe . . .
that advising the police in the investigative phase of a criminal case is so intimately
associated with the judicial phase of the criminal process.” Id. at 493. Thus, Burns
similarly applied absolute immunity to investigation-related conduct that is closely tied to
Lawlor argues that Buckley indicates that the decision to apply or deny absolute immunity may
be made by asking whether the prosecutor had probable cause. See Buckley, 509 U.S. at 274 n.5
(suggesting that a prosecutor is not entitled to absolute immunity for “investigative acts made before there
is probable cause to indict”). However, as Lawlor concedes, this “cannot be said to be a bright-line rule.”
Opp. at 4. A rule could not to be drawn based on the point at which the prosecutor actually has probable
cause, because the Buckley Court also acknowledged that a prosecutor is entitled to absolute immunity
for engaging in prosecution without probable cause. Buckley, 509 U.S. at 274 n.5. A rule also could not
be drawn simply based on the point at which the prosecutor believes he has probable cause, or else
every prosecutor could easily extend absolute immunity into the police investigation stage simply by
alleging that he had such a belief. Nor could the rule be drawn based on the point at which the
prosecutor has, as a formal, legal matter, established probable cause, by obtaining a warrant or
indictment. This would conflict with established case law holding that a prosecutor is entitled to immunity
for conduct involved in seeking an arrest warrant, Kalina, 522 U.S. at 509, or seeking an indictment, see,
supra, at 11. The Buckley Court’s discussion of the fact that the prosecutors in that case lacked probable
cause must be read not as establishing a bright-line rule based on the existence or non-existence of
probable cause, but instead as emphasizing one important indication that the prosecutors there were like
police detectives in the process of investigating an “unsolved crime,” rather than preparing to initiate the
judicial phase of the criminal process. See Buckley, 509 U.S. at 274 (“The prosecutors do not contend
that they had probable cause to arrest petitioner or to initiate judicial proceedings during that period”).
formal, judicial proceedings, and qualified immunity to conduct that is more closely
related to police investigation.
A recent Second Circuit decision also reflects this distinction. In Warney v.
Monroe County, 587 F.3d 113 (2d Cir. 2009), the Second Circuit held that prosecutors
were protected by absolute immunity for delaying release of exonerating DNA test
results during a period in which they performed additional investigative measures. The
Second Circuit acknowledged that, “If one focuses on the DNA testing, the prosecutors’
conduct might be classified as investigative; if one focuses on the act of delaying
disclosure, the prosecutors’ conduct might be classified as administrative, or possibly
investigative.” Warney, 587 F.3d at 123. However, the court concluded that, “it is
unhelpful to ascertain the prosecutors’ functional role by isolating each specific act done
or not done; rather, a prosecutor’s function depends chiefly on whether there is pending
or in preparation a court proceeding in which the prosecutor acts as an advocate.” Id.
The Warney court held that, considered in context, the investigative measures were part
of the prosecutors’ role as advocates because they were undertaken in order to fulfill
their obligation to determine whether or not to oppose Warney’s motions for postconviction relief. Id. at 124 (“The proper and useful focus for ascertaining the function
being served by a prosecutor’s act is therefore on the pendency of court proceedings
that engage the prosecutor as an advocate for the state”).
The investigatory grand jury proceeding at issue here is closely tied to the judicial
phase of criminal proceedings and to the initiation of prosecution. First, even though a
traditional grand jury is, in important respects, not a part of the judicial branch, see
Williams, 504 U.S. at 47 (“the grand jury is an institution separate from the courts, over
whose functioning the courts do not preside”), proceedings before a grand jury are
considered part of the “judicial phase of criminal proceedings” for purposes of
prosecutorial immunity, Bernard, 356 F.3d at 503 (the presentation of evidence to a
grand jury “lie[s] at the very core of the prosecutor’s role as an advocate engaged in the
judicial phase of the criminal process”). Connecticut’s investigatory grand jury bears a
much closer connection to the judiciary. It is appointed upon the decision and order of a
panel of judges, and by action on that order by the Chief Court Administrator, Conn.
Gen. Stat §§ 54-47c, 54-47d; its membership consists of a judge or panel of judges, id.
§ 54-47b(3); and, upon completion of its investigation, it must report its findings to a
court, id. § 54-47g(a). A prosecutor assisting in the investigation serves by appointment
of the judge or judges conducting the investigation. Id. § 54-47f(a). Thus, proceedings
before an investigatory grand jury have an even stronger claim to being deemed part of
the “judicial phase of criminal proceedings,” and a prosecutor assisting such an
investigation is even more clearly acting as an officer of the court.
Second, proceedings before an investigatory grand jury are closely connected
with the initiation of criminal proceedings. The fact that the investigatory grand jury
does not itself issue an indictment does not show that a prosecutor’s conduct before an
investigatory grand jury is not closely tied to the initiation of criminal proceedings. To
the contrary, the investigatory grand jury is available to a prosecutor only in cases
where he can affirm that other investigative methods are inadequate to establish
probable cause, Conn. Gen. Stat. § 54-47c(d), but in which the prosecutor also has a
“reasonable belief” that the process will lead to a finding of probable cause. Id. § 5447c(b). In such circumstances, an investigatory grand jury is, like a traditional grand
jury, the prosecutor’s key to obtaining a formal accusation and to initiating prosecution.
See Connelly, 213 Conn. at 70 (drawing an analogy between investigating and indicting
grand juries and noting that the investigatory grand jury “report[s] its findings to the court
for possible prosecution”).
In sum, because a prosecutor is entitled to absolute immunity for claims relating
to his presentation of evidence to a grand jury, Bernard, 356 F.3d at 505, and more
generally for conduct in preparation for “the initiation of judicial proceedings or for trial,
and which occur in the course of his role as an advocate for the State,” Buckley, 509
U.S. at 273, Connelly is entitled to absolute immunity from Lawlor’s claims based on his
failure to disclose exculpatory evidence to the investigatory grand jury.
Allegations of Misconduct After the Grand Jury Investigation
The Complaint alleges that, after the grand jury investigation, Connelly failed to
disclose exculpatory information to the prosecutor assigned to litigate the state’s case
against Lawlor. Complaint ¶ 20. The Supreme Court’s unanimous decision in Van de
Kamp v. Goldstein, 129 S. Ct. 862 (2009), makes clear that Connelly is entitled to
absolute immunity on any claim arising from this conduct.
In Van de Kamp, the Court held that absolute immunity applied to a claim that a
prosecutor’s office failed to adequately train and supervise deputy district attorneys and
“failed to create any system for the Deputy District Attorneys handling criminal cases to
access information” required to be disclosed as impeachment evidence under Giglio v.
United States, 405 U.S. 150 (1972). Van de Kamp, 129 S. Ct. at 861. To support its
holding, the Court drew an analogy to a hypothetical case:
Suppose that Goldstein had brought such a case, seeking
damages not only from the trial prosecutor but also . . . from
the trial prosecutor's colleagues--all on the ground that they
should have found and turned over the impeachment
material about Fink. Imbler makes clear that all these
prosecutors would enjoy absolute immunity from such a suit.
The prosecutors’ behavior, taken individually or separately,
would involve “[p]reparation . . . for . . . trial,” 424 U.S., at
431, n. 33, . . . and would be “intimately associated with the
judicial phase of the criminal process” because it concerned
the evidence presented at trial. Id., at 430.
Van de Kamp, 129 S. Ct. at 862.
The hypothetical case considered in Van de Kamp is precisely the one before the
court. Lawlor alleges that Connelly ought to have disclosed the exculpatory Brady
material after the matter was transferred to a colleague for prosecution. Complaint
¶ 20. At that point, the prosecutors were clearly preparing for litigation of criminal
charges, and their decisions about what information to disclose is clearly protected by
absolute immunity. Van de Kamp, 129 S. Ct. at 862; Imbler, 424 U.S. at 430.
Therefore, Connelly is entitled to absolute immunity for allegations that he failed to
disclose exculpatory information to the attorney assigned to prosecute the case.
For the foregoing reasons, Connelly’s Motion to Dismiss (Doc. No. 9) is
GRANTED. The Clerk is directed to close the case.
Dated at Bridgeport, Connecticut, this 5th day of May, 2011.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
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