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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Expert Not Entitled to Absolute Immunity and Could be Sued


In Keko v. Hingle, No. 01-30622, Tony Keko sued pursuant to 42 U.S.C. section 1983 to redress his overturned conviction of the 1991 murder of his estranged wife Louise. He appealed the trial court's granting of summary judgment in favor an expert witness and others. The expert contended he was shielded by absolute immunity and could not be sued. The Fifth Circuit Court of Appeals disagreed and reversed that portion of the case.

The expert was not an employee of any state or government agency. The claims were viable because they included assertions of conspiracy with state employees to commit malicious prosecution and to procure a false arrest. The U.S. Supreme Court has previously held a private party may be liable for conspiracy with state actors to violate civil rights. The expert contended he was immune for his report which was offered at the probable cause hearing and for his research and investigative work that led to the preparation of the expert report.

The Court of Appeals held the ex parte probable cause hearing was not the type of judicial proceeding for which a witness's testimony requires absolute immunity. The expert was not a formal member of the prosecution team or responsible for the final prosecutorial decisions, but his report stated "indeed and without doubt" the bite marks he observed on the exhumed body of Louise Keko matched Tony's dental impressions. Further, according to the state court, his report was critical to obtaining probable cause to arrest, he examined only Tony Keko's dental impressions and not those of any other potential suspect, and he performed his function at the behest of the sheriff's office to assist in "identifying" the attacker. The court held the complaining witness defense was not available to the expert.

On remand, the court will have to examine if the expert used shoddy and unscientific research techniques that resulted in a report critical to a baseless murder prosecution of Keko. He should not have greater immunity than any other investigator. The trial court will also have to examine if discretionary immunity protects the expert or not. He is not entitled to absolute immunity.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), (e-mail), Follow us on Twitter at @firesandrain.

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