DA can't be sued for alleged conspiracy to protect rapist, 5th Circuit says; did Kozinski brief change a vote?
Alex Kozinski was one of three retired judges who submitted an amicus brief in the case. (AP Photo/J. David Ake, File)
Crime victims don’t have standing to sue over alleged prosecutorial misconduct if they aren’t facing prosecution, a federal appeals court ruled Tuesday in a substituted opinion.
The New Orleans-based 5th U.S. Circuit Court of Appeals ruled against Priscilla Lefebure, who alleges she was raped repeatedly by an assistant prison warden in Louisiana who used his connections to get the district attorney not to prosecute. The 5th Circuit ruled Lefebure did not have standing to sue the DA, Samuel D’Aquilla of Louisiana’s 20th Judicial District. Bloomberg Law has coverage.
Lefebure said she was raped at the house of the assistant prison warden, who was her cousin’s husband, after she went there because of severe flooding in Baton Rouge. The home was on the grounds of the Louisiana state prison where the assistant warden worked.
The assistant warden’s defense lawyer was also a relative of D’Aquilla’s, Lefebure said in her lawsuit.
“It is difficult to imagine anyone who deserves justice more than Priscilla Lefebure,” the appeals court said, noting it was accepting Lefebure’s allegations as true for its opinion. “But victims do not have standing based on whether other people—including their perpetrators—are investigated or prosecuted.”
The appeals court denied a rehearing in the case on the same day it issued the substituted opinion, which responds to an amicus brief submitted by three retired judges.
One of the judges on the amicus brief is former Judge Alex Kozinski of the San Francisco-based 9th U.S. Circuit Court of Appeals, according to the Volokh Conspiracy. Kozinski retired in December 2017 amid allegations of sexual misconduct that included inappropriate touching and sexual comments.
The three judges wrote the brief based on a request by one of Kozinski’s former law clerks, Haller Jackson, who served time at Louisiana’s Angola state penitentiary after pleading guilty to computer solicitation of a minor, Reuters reported.
Haller was familiar with the assistant warden, and he believed the 5th Circuit erred. He also believed the 5th Circuit shouldn’t have ruled without briefing by Lefebure’s lawyer, who told Reuters he was in a severe depression when his brief should have been filed.
The amicus brief argued Lefebure should allowed to sue because her assault stemmed from the DA’s “persistent and discriminatory policy of underenforcing rape laws.”
The appeals court said it granted four requests by Lefebure’s lawyer to extend the briefing deadline, and then gave the lawyer 10 more days to file.
The 5th Circuit’s substitute opinion, like the first, rejected Lefebure’s claim against the DA on standing grounds, but the vote changed. The first opinion was unanimous and the second was decided 2-1.
The assistant warden said the sex was consensual and bruises were due to “rough” sex. D’Aquilla opposed rehearing, arguing a grand jury had declined to indict and its decision should not be second-guessed.
