A prosecutor’s Brady obligation to disclose exculpatory evidence remains until a case is final even if the prosecutor is no longer the lead attorney. The U.S. Court of Appeals for the Seventh Circuit ruled on February 28 that this and the ongoing Giglio obligation are prosecutorial functions that allow a prosecutor to claim absolute immunity for alleged misconduct even if he or she is no longer the lead prosecutor in the case.
Judge Joel M. Flaum wrote in the opinion (here): “A prosecutor’s Brady and Giglio obligations remain in full effect on direct appeal and in the event of retrial because the defendant’s conviction has not yet become final, and his right to due process continues to demand judicial fairness.”
The plaintiff in the case had sued the city of Chicago, Cook County, police officers and two former county prosecutors after his wrongful conviction and incarceration for murder. He alleged prosecutorial misconduct in including false testimony at his retrial which covered up alleged wrongdoing in the first trial. The Appeals Court overruled the District Court which had declined to extend the absolute immunity because the prosecutor was no longer actively involved in the case.
The Appeals Court ruling potentially extends the immunity privilege for misconduct during the post-conviction phase and through retrial.