Malicious Prosecution

This from the Law Reader:

KENTON COM. ATTN. SUED FOR

MALACIOUS PROSECUTION

BY ACQUITTED SCHOOL TEACHER WHO WAS ALLEGED

TO HAVE HAD SEX WITH A MALE STUDENT

On Wed. Nov. 25th. Nicole Howell filed a Federal 1983 Civil Rights complaint against Kenton Commonwealth Attorney Rob Sanders. The suit claims Sanders ordered the arrest of Howell without the required “probable cause”. Kentucky law since 1993 has held that Prosecutors have a qualified immunity for acts committed during the “Investigatory Phase” of their work, but have Absolute Immunity for the “Prosecutorial Phase” of their work.

To overcome qualified immunity a litigant suing a prosecutor must prove malice and lack of probable cause. The Doctrine of Absolute Immunity is currently under attack in the U.S. Supreme Court in the Pottawatamee case. A decision by the U.S. Supreme Court is expected to be handed down by June of 2010.

Absolute Immunity was first created in Federal law in the 1990’s, and was adopted in Kentucky only in 1993. At the time of the adoption of that doctrine in Ky. Justices Leibson, Combs and Wintersheimer all dissented.

After the l993 Kentucky case, which failed to extend Absolute Immunity to the Investigatory Phase of a criminal prosecution, the General Assembly quickly adopted legislation which provides compensation for any jury verdicts against a prosecutor. This law also covers a Prosecutors legal expenses in defending such a claim...