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No. 07-854

 

In the Supreme Court of the United States

JOHN VAN DE KAMP, ET AL., PETITIONERS

v.

THOMAS LEE GOLDSTEIN

ON A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
IN SUPPORT OF PETITIONER

GREGORY G. GARRE
Acting Solicitor General
Counsel of Record
GREGORY G. KATSAS
Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
LISA S. BLATT
Assistant to the Solicitor
General
BARBARA L. HERWIG
MARK W. PENNAK
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether supervisory prosecutors are entitled to ab solute prosecutorial immunity from suits for damages alleging that they violated Giglio v. United States, 405 U.S. 150 (1972), by failing to develop policies to ensure information sharing among prosecutors concerning jail house informants and failing to provide adequate super vision and training concerning Giglio obligations.

In the Supreme Court of the United States

No. 07-854

JOHN VAN DE KAMP, ET AL., PETITIONERS

v.

THOMAS LEE GOLDSTEIN

ON A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
IN SUPPORT OF PETITIONER

INTEREST OF THE UNITED STATES

The United States employs more than 4500 Assistant United States Attorneys, who in Fiscal Year 2007 filed criminal charges in more than 59,000 cases against more than 80,000 defendants. Executive Office for U.S. Attor neys, U.S. Department of Justice, United States Attor neys Annual Statistical Report: Fiscal Year 2007, at 3 (Overview Chart 1), 9. Those prosecutors are super vised by 93 United States Attorneys (id. at 1), 175 First Assistants or Criminal Chiefs, and numerous Supervi sory Assistant United States Attorneys. In addition, federal prosecutors in the litigating Divisions of the De partment of Justice are supervised by Chiefs and Dep uty Chiefs in their Divisions.

Although federal officers are not subject to suit un der 42 U.S.C. 1983, they may be sued for damages for violations of constitutional rights under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcot ics, 403 U.S. 388 (1971). The immunity granted to fed eral officers in Bivens generally parallels the immunity that state officers enjoy in suits under Section 1983. See, e.g., Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 433 n.5 (1993); Harlow v. Fitzgerald, 457 U.S. 800, 818 n.30 (1982); Butz v. Economou, 438 U.S. 478, 504 (1978). Thus, the disposition of the immunity issue in this case could significantly affect federal prosecutors and the broader interest of the United States in ensur ing "the vigorous and fearless performance of the prose cutor's duty that is essential to the proper functioning of the criminal justice system." Imbler v. Pachtman, 424 U.S. 409, 427-428 (1976).

STATEMENT

1. In 1980, respondent was prosecuted for murder by Los Angeles County deputy district attorneys who were then under the general supervisory control of petition ers, the former Los Angeles County District Attorney and his chief deputy. During petitioner's trial, the pros ecution relied on the testimony of a jailhouse informant, Edward Floyd Fink, who testified that respondent had confessed to the murder while both were being detained at the Long Beach City Jail and that Fink had received no favors or benefits from the State for his testimony. Respondent served 24 years of his prison term, but in April 2004 he was released after securing habeas relief. Pet. App. 3-5.

After his release, respondent brought suit under Sec tion 1983 against petitioners as well as the City of Long Beach, the County of Los Angeles, and four officers of the Long Beach Police Department. The complaint al leges that Fink falsely testified that respondent con fessed to the murder and that Fink had not received any benefits for testifying against respondent. The com plaint further alleges that, in fact, Fink had acted as an informant for several years and had received multiple reduced sentences in return. Pet. App. 3-4. The com plaint alleges that other deputy district attorneys under the supervisory control of petitioners were aware of those benefits, but that such information was never shared with the deputy district attorneys who prose cuted respondent during the 1980 murder trial. Id. at 4.

The complaint alleges that this Court's decision in Giglio v. United States, 405 U.S. 150 (1972), imposed "an administrative duty" on petitioners "to create a system in which information pertaining to jailhouse informants would be disseminated" to deputy district attorneys. J.A. 50 (¶ 104). The complaint further alleges that petitionerspurposefully or with deliberate indifference failed to create any system for the Deputy District Attorneys handling criminal cases to access information per taining to the benefits provided to jailhouse infor mants and other impeachment information, and failed to train Deputy District Attorneys to dissemi nate information pertaining to benefits provided to jailhouse informants and other impeachment infor mation.

J.A. 45 (¶ 92); see J.A. (¶¶ 105, 106), 68-70 (¶¶ 152, 154). The suit alleges that based on petitioners' failure to cre ate such a system, and their failure to train and to su pervise their subordinates in such a system, the prosecu tors who handled respondent's case did not have access to impeachment information concerning Fink, such that the information was not shared with defense counsel, in violation of Giglio. Pet. App. 4-5.

2. Petitioners moved to dismiss the claims against them on the ground that the claims were barred by ab solute immunity. The district court denied the motion, holding that petitioners were not entitled to absolute immunity because the nature of the challenged alleged conduct was "administrative." Pet. App. 18-20.

3. On interlocutory appeal, the court of appeals af firmed. Pet. App. 1-15. The court of appeals stated that it would "assume without deciding that [respondent] has alleged a deprivation of a constitutional right under § 1983" and that "[w]hether the alleged conduct is suffi cient to state a claim for liability under § 1983 is there fore not before the [c]ourt." Id. at 6 (quoting Genzler v. Longanbach, 410 F.3d 630, 644 (9th Cir.), cert. denied, 546 U.S. 1031 (2005)).

Turning to the issue of immunity, the court explained that absolute immunity applies to "conduct that is 'inti mately associated with the judicial phase of the criminal process'" and "occur[s] in the course of his [or her] role as an advocate for the State." Pet. App. 7 (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976), and Buck ley v. Fitzsimmons, 509 U.S. 259, 273 (1993)). The court observed, however, that a prosecutor is entitled to only qualified immunity "if he or she is performing investiga tory or administrative functions, or is essentially func tioning as a police officer or detective." Ibid. (quoting Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003)). The court accordingly stated that "when determining whether absolute immunity applies, courts must exam ine 'the nature of the function performed, not the iden tity of the actor who performed it." Id. at 8 (quoting Forrester v. White, 484 U.S. 219, 229 (1988)).

Applying that functional inquiry, the court of appeals held that the alleged conduct was "administrative and not prosecutorial in function." Pet. App. 13. The court acknowledged that "the specific duty to share informa tion regarding jailhouse informants arose only because of [petitioners'] roles as prosecutors." Id. at 14. But the court reasoned that petitioners' alleged "failure to pro mulgate policies regarding the sharing of information relating to informants and their failure to adequately train and supervise deputy district attorneys on that subject, bear a close connection only to how the District Attorney's Office was managed, not to whether or how to prosecute a particular case or even a particular cate gory of cases." Id. at 15.

SUMMARY OF ARGUMENT

The court of appeals erred in holding that supervi sory prosecutors lack absolute immunity from suits seeking damages alleging that they violated Giglio v. United States, 405 U.S. 150 (1972), by failing to develop policies to ensure information sharing among prosecu tors concerning jailhouse informants and failing to pro vide adequate supervision and training concerning Gig- lio obligations.

A. In Imbler v. Pachtman, 424 U.S. 409, 431 (1976), this Court held that "in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under [Section] 1983." In that case, the prosecutor had been sued for knowingly presenting false testimony at trial and deliberately sup pressing exculpatory evidence. The Court explained that those activities were "intimately associated with the judicial phase of the criminal process" and thus claims arising out of those activities were barred by absolute immunity. Id. at 416, 430. The Court reached that re sult because of a "concern that harassment by un founded litigation would cause a deflection of the prose cutor's energies from his public duties, and the possibil ity that he would shade his decisions instead of exercis ing the independence of judgment required by his public trust." Id. at 423.

Subsequent cases have confirmed that a functional approach governs what actions by prosecutors are en titled to absolute immunity. Burns v. Reed, 500 U.S. 478, 486 (1991). A prosecutor is therefore absolutely immune for carrying out prosecutorial duties as an advo cate for the government in judicial criminal proceedings. Kalina v. Fletcher, 522 U.S. 118, 128-129 (1997); Buck ley v. Fitzsimmons, 509 U.S. 259, 272 (1976); Burns, 500 U.S. at 491. Conversely, a prosecutor is entitled to only qualified immunity when carrying out "administrative duties and those investigatory functions that do not re late to an advocate's preparation for the initiation of a prosecution or for judicial proceedings." Buckley, 509 U.S. at 273.

B. The duty to disclose material impeachment evi dence under Giglio, like the duty to disclose materially exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), implicates the core prosecutorial function to seek justice and the truth in the prosecution of crimi nal cases. See, e.g., Kyles v. Whitley, 514 U.S. 419, 439 (1995). But nothing in Giglio or any other decision of this Court creates a free-standing constitutional obliga tion for supervisory prosecutors to establish particular policies or procedures or to train and supervise line prosecutors, in order to ensure compliance with Giglio. Rather, the Constitution imposes a duty of disclosure of material evidence in a particular criminal case. Kyles, 514 U.S. at 438; Giglio, 405 U.S. at 154. The allegations that petitioners failed to establish certain procedures or to train or supervise line prosecutors in those proce dures do not state a violation of that duty.

In any event, even assuming (as did the courts below) that supervisory prosecutors do have a duty under Giglio to establish a particular set of procedures and to train and supervise their subordinates in those proce dures, claims alleging violations of that duty would be barred by absolute immunity. Imbler, supra. Respon dent cannot circumvent the doctrine of absolute prosecu torial immunity by characterizing policy formation, training, and supervision as administrative in nature or, as did the Ninth Circuit, as involving a managerial func tion. Pet. App. 15. Whether a supervisor directs a line prosecutor how to comply with Giglio in a particular case, or whether the supervisor reduces her guidance on Giglio compliance to a written policy that governs all prosecutions, the supervisor is carrying out the core prosecutorial function of Giglio compliance. There is no basis for Ninth Circuit's anomalous rule that would af ford prosecutorial immunity to a supervisor who inten tionally directs a line prosecutor to violate Giglio but that would deny the same immunity to a supervisor whose policies, training, and supervision on Giglio com pliance (or lack thereof) cause an inadvertent violation by a line prosecutor.

C. All of the policy justifications for extending abso lute immunity to a line prosecutor who violates Giglio apply with equal or greater force to a supervisory prose cutor who allegedly failed to establish policies and to provide adequate training and supervision about Gig lio compliance. Denying absolute immunity for policy formation, training, and supervision by supervisory prosecutors would permit hundreds if not thousands of suits for damages against supervisors who are responsi ble for setting policies and providing prosecutorial guid ance to their subordinates.

Such suits would severely disrupt the functioning of the office of the prosecutor in a multitude of ways. Pros ecutors would be faced with defending their decisions to set policies, or not to set policies, on Giglio compliance. They also could have to re-litigate issues involved in the underlying criminal trial of the defendant, such as whether there was a non-disclosure, the materiality of the evidence, and the cause of the Giglio violation. That litigation would intrude on sensitive prosecutorial delib erations as well as open the door to burdensome discov ery. The criminal justice system as well would be ad versely affected by such suits, because courts faced with collateral challenges to criminal convictions could be influenced by concerns about exposing supervisory pros ecutors to suits for damages.

At the same time, extending absolute immunity to supervisory prosecutors does not leave the public power less to deter and punish prosecutorial misconduct. Im bler, 424 U.S. at 429. Supervisory prosecutors are sub ject to a variety of sanctions that ensure that prosecu tors fulfill their ethical duties and special role in the criminal justice system. Giglio itself imposes a strong incentive to establish robust policies favoring disclosure of material evidence because, inter alia, the failure to abide by Giglio can result in the forfeiture of a criminal conviction. Supervisory prosecutors are also subject to professional discipline, public disapproval, and even criminal penalties for wilful misconduct.

ARGUMENT

SUPERVISORY PROSECUTORS ARE ABSOLUTELY IM MUNE FROM DAMAGES BASED ON THEIR CONDUCT IN ESTABLISHING (OR IN FAILING TO ESTABLISH) POLI CIES ON COMPLIANCE WITH GIGLIO AND IN TRAINING AND SUPERVISING SUBORDINATES ON A PROSECUTOR'S GIGLIO OBLIGATIONS

This case was decided by the courts below on the assumption that a supervisory prosecutor may violate the constitutional right recognized in Giglio, supra, by failing to adopt procedures designed to avoid Giglio vio lations, or by failing to train or supervise line prosecu tors in those procedures. Pet. App. 4, 6. That assump tion is unfounded. Giglio recognizes a constitutional protection consisting of a duty to disclose material im peachment evidence in a particular case. It does not impose a free-standing procedural obligation on supervi sory prosecutors to adopt procedures or to train or su pervise line prosecutors to reduce the risk of Giglio vio lations across the board. It may be advisable for super visory prosecutors to devise such policies or provide such training to reduce the risk that individual prosecu tions will not be compromised. But Giglio does not im pose that kind of wholesale obligation on supervisory prosecutors. In any event, even assuming the existence of a Giglio violation in these circumstances, the court of appeals erred in holding that petitioners do not enjoy absolute immunity from such Giglio claims.

Absolute immunity protects prosecutors from the burdens and distractions of having to defend claims for personal damages liability for actions undertaken in the prosecutorial role. Contrary to the Ninth Circuit's view, the claim that petitioners failed to establish policies and procedures for sharing Giglio information and their al leged failure to provide proper training and supervision of prosecuting attorneys on the sharing of that informa tion implicates all of the policies that justify absolute immunity. A prosecutor's duty to disclose impeachment information in compliance with Giglio is "intimately as sociated with the judicial phase of the criminal process" (Imbler, 424 U.S. at 430) and involves the prosecutor's unique role in the criminal justice system. A line prose cutor who fails to make such a disclosure is entitled to absolute prosecutorial immunity. Assuming Giglio ap plies in the circumstances here, a supervisory prosecu tor sued for damages in failing to establish policies, in stitute training, or supervise those who failed to make the disclosure is entitled to no less.

A. Prosecutors Are Entitled To Absolute Immunity For Carrying Out Their Prosecutorial Functions

1. In Imbler, this Court held that "in initiating a prosecution and in presenting the State's case, the pros ecutor is immune from a civil suit for damages under [Section] 1983." 424 U.S. at 431. Thus, the Court de cided, the state prosecutor in that case was absolutely immune from charges that he knowingly presented false testimony at trial and deliberately withheld exculpatory evidence from the defense. Id. at 416, 431 & n.34. In so holding, the Court concluded that such activities were "intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force." Id. at 430.

Those reasons "include concern that harassment by unfounded litigation would cause a deflection of the pros ecutor's energies from his public duties, and the possi bility that he would shade his decisions instead of exer cising the independence of judgment required by his public trust." Imbler, 424 U.S. at 423. Such suits, the Court added, "could be expected with some frequency," and would require an enormous diversion of energy to defend. Id. at 425. The Court concluded that extending only qualified immunity to a prosecutor "would prevent the vigorous and fearless performance of the prosecu tor's duty that is essential to the proper functioning of the criminal justice system." Id. at 427-428.

The Court also observed that although absolute im munity "does leave the genuinely wronged defendant without civil redress against a prosecutor whose mali cious or dishonest action deprives him of liberty," such immunity "does not leave the public powerless to deter misconduct or to punish that which occurs." Imbler, 424 U.S. at 427, 429. A prosecutor is subject to the criminal law for his willful acts, the Court explained, and he "stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers." Id. at 429.

Imbler recognized that the scope of absolute prosecu torial immunity extended beyond in-court conduct be cause "the duties of the prosecutor in his role as advo cate for the State involve actions preliminary to the initi ation of a prosecution and actions apart from the court room." 424 U.S. at 431 n.33. The Court did not, how ever, decide whether absolute immunity extended to "those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of an advocate," id. at 430-431, or precisely how to distinguish those roles, id. at 431 n.33.

2. Subsequent cases have confirmed that the Court takes a "functional approach" in determining which ac tions by a prosecutor are subject to absolute immunity. Burns, 500 U.S. at 486. That approach "looks to 'the nature of the function performed, not the identity of the actor who performed it.'" Buckley, 509 U.S. at 269 (quoting Forrester v. White, 484 U.S. 219, 229 (1988)). Absolute immunity extends to claims challenging not only the decision to initiate a prosecution and the filing of charging documents with the court, Kalina, 522 U.S. at 128-129, but also any "'duties of the prosecutor in his role as advocate for the State,'" Buckley, 509 U.S. at 272 (quoting Imbler, 424 U.S. at 431 n.33).

Those duties often will "involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom" and "include the professional evaluation of the evidence assembled by the police and appropriate preparation for its presentation at trial or before a grand jury after a decision to seek an indictment has been made." Buckley, 509 U.S. at 272, 273 (citation omitted). For instance, absolute immunity extends to claims challenging a prosecutor's appearance as a law yer in a probable cause hearing in examining a witness and seeking a search warrant. Burns, 500 U.S. at 487- 492. Immunity applies in those situations because the duties "involve the prosecutor's 'role as advocate for the State'" and "are connected with the prosecutor's role in judicial proceedings." Id. at 491 (quoting Imbler, 424 U.S. at 431 n.33), 494; accord Buckley, 509 U.S. at 271.

Absolute immunity is not available to "administrative duties and those investigatory functions that do not re late to an advocate's preparation for the initiation of a prosecution or for judicial proceedings." Buckley, 509 U.S. at 273. Prosecutorial immunity thus does not ex tend to acts by a prosecutor in giving legal advice to po lice officers about the use of hypnosis and the existence of probable cause to arrest a suspect, Burns, 500 U.S. at 492-496, or to investigative work performed before prob able cause to arrest a suspect has been established, Buckley, 509 U.S. at 274-275. In those instances, the prosecutor "performs the investigative functions nor mally performed by a detective or police officer." Id. at 273; see Kalina, 522 U.S. at 126.

Absolute immunity also does not extend to a prosecu tor's statements to the press because "[c]omments to the media have no functional tie to the judicial process just because they are made by a prosecutor." Buckley, 509 U.S. at 277. Similarly, qualified, rather than absolute, immunity applies to personnel actions brought by em ployees. Ceballos v. Garcetti, 361 F.3d 1168, 1170, 1184 (9th Cir. 2004) (prosecuting attorney brought First Amendment retaliation claim against his supervisors), rev'd on other grounds, 547 U.S. 410 (2006); cf. For rester, 484 U.S. at 229 (Judge "was acting in an adminis trative capacity when he demoted and discharged" a court employee and thus was not entitled to absolute immunity.). Likewise, absolute immunity does not apply to a prosecutor's sworn statements attesting to the fac tual grounds for an arrest warrant because "the only function she performs in giving sworn testimony is that of a witness," not of a lawyer. Kalina, 522 U.S. at 131.

B. Absolute Immunity Bars All Claims Challenging A Su pervisory Prosecutor's Role In Complying With Giglio

1. The Due Process Clause imposes on the prosecu tion in a criminal trial an "affirmative duty to disclose evidence favorable to a defendant." Kyles, 514 U.S. at 432. That duty is "most prominently associated with this Court's decision in Brady." Ibid. Brady held "that the suppression by the prosecution of evidence favorable to an accused * * * violates due process where the evi dence is material either to guilt or punishment, irrespec tive of the good faith or bad faith of the prosecution." 373 U.S. at 87.

In Giglio, the Court held that the due process rule of Brady was violated when the government failed to dis close impeachment evidence consisting of a prosecutor's promise to a key government witness that he would not be prosecuted in exchange for grand jury and trial testi mony. 405 U.S. at 152-154. The Court explained that "whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor" to com municate to the defense promises made to a witness by the prosecutor's office. Id. at 154. Thus, "[i]mpeach ment evidence, * * * as well as exculpatory evidence, falls within the Brady rule." United States v. Bagley, 473 U.S. 667, 676 (1985); see Strickler v. Greene, 527 U.S. 263, 280 (1999); Kyles, 514 U.S. at 433-434.

The prosecution's duty to disclose material exculpa tory evidence "illustrate[s] the special role played by the American prosecutor in the search for truth in criminal trials." Strickler, 527 U.S. at 281. A prosecutor is "the representative * * * of a sovereignty * * * whose interest * * * in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935); see Strickler, 527 U.S. at 281; Kyles, 514 U.S. at 439; United States v. Agurs, 427 U.S. 97, 111 (1976); see also Bagley, 473 U.S. at 675 n.6 ("By requiring the prosecutor to assist the defense in making its case, the Brady rule represents a limited departure from a pure adversary model."). The prosecutor's responsibility under Brady and Giglio is vital "to preserve the criminal trial * * * as the chosen forum for ascertaining the truth about criminal accusa tions." Kyles, 514 U.S. at 440; Bagley, 473 U.S. at 675 (disclosure ensures that a "miscarriage of justice does not occur"); Agurs, 427 U.S. at 104 (non-disclosure in volves a "corruption of the truth-seeking function of the trial process").

2. Under the foregoing principles, claims challenging a prosecutor's failure to comply with Brady or Giglio implicate a core prosecutorial function, and such claims are therefore barred by absolute immunity. As dis cussed, the Court in Imbler held that a prosecutor was entitled to absolute immunity from claims that he delib erately suppressed exculpatory evidence. The Court explained that "[d]enying absolute immunity from sup pression claims could * * * eviscerate, in many situa tions, the absolute immunity from claims of using per jured testimony." 424 U.S. at 432 n.34; see Kalina, 522 U.S. at 124 (observing that Imbler extended absolute immunity to suppression claims even though those claims were "broader than any specific common-law an tecedent").1

Absolute immunity applies with equal force to a claim that a supervisory prosecutor directed a Brady or Gig lio violation in a particular case, such as a claim that a supervisor directed his subordinates not to share im peachment information with other prosecutors. A su pervisory prosecutor's participation in the non-disclo sure of Brady or Giglio information implicates a core duty of the prosecution. See, e.g., Executive Office for U.S. Attorneys, U.S. Dep't of Justice, United States At torneys' Manual § 9.5100(3) (Dec. 2006) (U.S. Attorneys' Manual) (requiring each prosecuting office to designate a senior official to communicate with investigative agen cies about Giglio material). As the Ninth Circuit has correctly observed, "if [the plaintiff's] allegation is to be understood to mean that [the supervisor] was directly involved in the decision not to [disclose evidence], he too would enjoy the same absolute prosecutorial immunity which shields [the prosecuting attorney]." Ybarra v. Reno Thunderbird Mobile Home Vill., 723 F.2d 675, 680 (9th Cir. 1984); Hamilton v. Daley, 777 F.2d 1207, 1213 n.5 (7th Cir. 1985) ("Since absolute immunity protects prosecutorial decisions, supervision of the prosecutors who make these decisions is similarly immune."). In short, a supervisor is no less functioning as a prosecutor by virtue of being a supervisor.

3. Those principles dictate that absolute immunity applies to the claims against petitioners in this case. Those claims involve petitioners' responsibility as prose cutors, i.e., their duties in their "role as advocate for the State." Imbler, 424 U.S. at 431 n.33. The claims here are brought by a defendant in a criminal case, arising out of the non-disclosure of Giglio information that al legedly led to his criminal conviction. Respondent also does not allege that petitioners were functioning as in vestigators. He alleges that county prosecutors, includ ing petitioners, allegedly violated duties mandated by this Court's decision in Giglio. Because those allega tions are "intimately associated with the judicial phase of the criminal process," id. at 430, 431 n.33, respon dent's challenge is barred by prosecutorial immunity.

Respondent seeks to avoid the doctrine of absolute immunity by alleging that Giglio created "an adminis trative duty to create a system in which information pertaining to jailhouse informants * * * would be dis seminated" among prosecuting attorneys in the District Attorney's Office, J.A. 50 (¶ 104) (emphasis added), and that petitioners purposefully, or with deliberate indiffer ence, violated that duty and failed to train and supervise prosecuting attorneys in such a system, J.A. 45-46 (¶ 92), 50-51 (¶¶ 104-106), 68-70 (¶¶ 152, 154); see Br. in Opp. 6 (stating that "[t]he theory of [respondent's] suit [i]s that [petitioners] have administrative obligations to create an information management system about informants and an obligation to train staff about maintaining this infor mation management system" and that "[t]hese obliga tions arise from [Giglio]"). The court of appeals, in characterizing respondent's allegations, similarly stated that "prosecutors' offices have a constitutional obliga tion to establish 'procedures and regulations . . . to insure communication of all relevant information on each case * * * to every lawyer who deals with it.'" Pet. App. 4 (quoting Giglio, 405 U.S. at 154). That effort to circumvent the bar against suing prosecutorial officials for prosecutorial actions fails.

As an initial matter, the above theory does not allege a valid constitutional claim and that provides an inde pendent basis for reversing the decision below. Neither Giglio nor any other decision of this Court creates a free-floating constitutional duty for supervisory prose cutors to establish procedures, regulations, or a system for the dissemination of impeachment evidence among prosecutors within the office, much less a specific "in formation management system about informants." Br. in Opp. 6. Nor is the due process principle recognized in Brady and applied in Giglio violated simply by a failure to train or supervise line prosecutors. To be sure, it may be advisable for supervisory prosecutors to develop such policies or provide such training or supervision to reduce the risk that Giglio violations will be committed in par ticular prosecutions, but the Constitution does not man date the adoption of such policies or practices.2

The Constitution imposes an affirmative prosecuto rial duty of disclosure of material evidence in a particu lar criminal case. That duty exists to protect the defen dant's right to a fair trial. Accordingly, this Court has held that a defendant's conviction must be reversed upon non-disclosure of material evidence, even where impeachment evidence is not known to the individual prosecutor on the case but is "known to the others act ing on the government's behalf in the case, including the police." Kyles, 514 U.S. at 437-438; Giglio, 405 U.S. at 154; U.S. Attorneys' Manual § 9-5.000(B)(2) (Dec. 2006) (federal prosecutors, "in preparing for trial," must seek all exculpatory and impeachment information from "fed eral, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defen dant").3

In that respect, the "individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf." Kyles, 514 U.S. at 437 (emphasis added); Strickler, 527 U.S. at 281. In Giglio, the Court explained that information in the possession of the prosecutor's office is charged to the prosecuting attorney and commented that "[t]o the ex tent that this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it." Giglio, 405 U.S. at 154; Kyles, 514 U.S. at 438. Far from imposing a constitutional obligation on supervisory prosecutors to establish precise policies and procedures or any information management system in particular, the Court's statement in Giglio observed only that compliance with its rule was feasible as a prac tical matter: "the prosecutor has the means to dis charge the government's Brady responsibility" by estab lishing appropriate procedures. Ibid. (emphasis added). The Court did not hold that supervisory prosecutors violate the Constitution by failing to establish such pro cedures. Accordingly, Giglio does not support the claim made against petitioners in this case, and the theory of Giglio affords no basis for positing that the Due Process Clause requires particular internal management struc tures or procedures.

4. In any event, respondent's purported constitu tional claim is barred by absolute immunity. While su pervisors are under no constitutional duty to establish certain procedures for Giglio compliance, when they do so they are functioning as prosecutors and exercising discretion in the conduct of criminal cases.4 Accord ingly, even if Giglio could be read to impose a duty to establish information-sharing procedures, that duty would arise only by virtue of petitioners' status as essen tial participants in the prosecutorial process-i.e., as supervisory prosecutors. As respondent acknowledges, his suit is based on a theory that this Court in Giglio "directed" and "mandated" supervisory prosecutors to establish an information management system. Br. in Opp. 1, 6. And the court of appeals likewise concluded that the claims against petitioners "arose only because of their roles as prosecutors." Pet. App. 14. If that were so, the absolute immunity doctrine of Imbler would gov ern and defeat respondent's Giglio claims.

The Ninth Circuit reasoned that the allegations against petitioners concerning the establishment of poli cies and a training and supervision program "bear a close connection only to how the District Attorney's Of fice was managed." Pet. App. 15 (emphasis added). That attempt to treat the supervisory prosecutors' ac tions here as managerial rather than prosecutorial is fundamentally mistaken. Just as the prosecutorial func tion includes any acts taken by a supervisory prosecutor to comply with Giglio in a given case, see pp. 16-17, su pra, the prosecutorial function includes decisions on whether to establish procedures to comply with Giglio, the content of any such procedures, and any training and supervision concerning such procedures. There is "no meaningful distinction between a decision on prosecu tion in a single instance and decisions on prosecutions formulated as policies for general application." Haynes worth v. Miller, 820 F.2d 1245, 1269 (D.C. Cir. 1987); accord Roe v. City & County of San Francisco, 109 F.3d 578, 583 (9th Cir. 1997).

For purposes of absolute immunity, there is accord ingly no meaningful distinction between a supervisor's guidance, supervision, and training in a specific case on how to comply with Giglio and the promulgation of gen eral policy on how to comply with Giglio in all cases. Suppose, for example, that a new prosecutor seeks out an experienced prosecutor for advice about how to com ply with Giglio, and the supervisor instructs him on the sources of information to contact. That advice would indisputably be characterized as "prosecutorial." The characterization does not change if the supervisor de cides to reduce her advice to a written manual that all of the prosecutors in the office can use to coordinate the office's compliance with Giglio. In both instances, the supervisor functions as a prosecutor in her unique role to ensure fairness in the judicial process. Similarly, in both instances, the supervisor must make "judgment calls" and exercise "discretion" (Kyles, 514 U.S. at 437, 439) in particular cases involving such issues as materi ality and what constitutes exculpatory and impeachment evidence. See, e.g., U.S. Attorneys' Manual § 9-5.001 (Dec. 2006) (purposes of Giglio policy are "to promote regularity in disclosure practices, through the reasoned and guided exercise of prosecutorial judgment and dis cretion by attorneys for the government" and "to seek a just result in every case").

The same reasoning applies to an alleged failure by a supervisor "to create an information management sys tem about informants" and "to train staff about main taining this information system." Br. in Opp. 6. Wheth er such a system is appropriate for a particular office, and what training would be necessary, requires the ex ercise of professional judgment on how to fulfill the pros ecution's duty of disclosure. Those decisions require "a balancing of myriad factors," including whether "prose cutorial resources" (Haynesworth, 820 F.2d at 1269) are best spent by creating, compiling, and maintaining an "informant information system" (Br. in Opp. 18). In deed, we are not aware of any United States Attorney's Office in the country that has established the database contemplated by respondent. Id. at 18-19. And contrary to respondent's suggestion (ibid.), in order to establish such a system, prosecutorial judgments would have to be made concerning, inter alia, whether and why a system should be limited to informants (as opposed to other types of witnesses), how a system could compile and track cases in which an informant has testified (and what jurisdictions would be included), whether such sen sitive law-enforcement information should be main tained by the prosecution or investigators, and what would constitute a "benefit[] or promise[]" made to an informant (id. at 19).

In any event, as discussed, a supervisor's actions in setting policies on those topics would occur only in the supervisor's role as a prosecutor. Again, there is no meaningful difference between a supervisory prosecutor who establishes an informant-information system for general application; a supervisory prosecutor who gives particular guidance and training on how to use such a system in a particular case; and indeed a line attorney who develops and utilizes such a system in retrieving informant information for disclosure to the defense. All of those actions would occur within the larger frame work of the truth-seeking function of the judicial process and would be intimately bound up with the role of the prosecutor as an advocate for the government. As such, absolute immunity bars all claims challenging those ac tions.

5. The Ninth Circuit's dichotomy between "adminis trative" and "prosecutorial" functions (Pet. App. 13) is also flawed conceptually. Some conduct that is actually "administrative" is also integrally bound up with carry ing out the prosecutorial function, and thus the conduct is protected by absolute immunity.5 For example, a line prosecutor may violate Giglio through her negligence involving misdelivery of the information to the wrong party, accidental destruction of the information, or the misentry of a informant's name in a hypothetical infor mant database. The prosecutor would be absolutely im mune from claims involving those situations because the claims arise out of her role as a prosecutor. Immunity would not be lost simply because the specific acts caus ing the Brady violation could be said to be "clerical," "ministerial," or "administrative" or not to have involved the exercise of professional judgment. Br. in Opp. 19.

Absolute immunity would apply to those instances because the acts are intimately bound up with a core prosecutorial function-the duty to disclose Giglio infor mation. Absolute immunity does not apply to "[a] prose cutor's administrative duties * * * that do not relate to an advocate's preparation * * * for judicial proceed ings." Buckley, 509 U.S. at 273 (emphasis added).6 This Court has "not retreated, however, from the principle that acts undertaken by a prosecutor in preparing * * * for trial, and which occur in the course of his role as an advocate for the State, are entitled to the pro tections of absolute immunity." Ibid. Because the su pervisory duty alleged to be violated here does "relate to an advocate's preparation * * * for judicial proceed ings," absolute immunity bars all claims challenging acts alleged to be in violation of that duty, even if in some sense it partakes of an "administrative" nature. Ibid.

Similarly, if a Giglio violation results from the neg ligence of a prosecutor's subordinate, such as a secre tary, the prosecutor does not lose absolute immunity simply because the complaint charges the prosecutor with deliberate indifference to the proper supervision of the secretary or to the management of his office. The same is true here. Respondent did not sue the individual prosecutors who allegedly violated respondent's Giglio rights by their non-disclosure of prosecutorial promises made to Fink. Instead, respondent sued supervisors who had no direct role in the violation but who are none theless alleged to be personally liable because they caused the violation in their capacities as managers and supervisors over the District Attorney's Office as a whole. Acceptance of that theory would permit a plain tiff to circumvent a prosecuting attorney's absolute im munity by suing his supervisor for negligent super vision. "Allowing the avoidance of absolute immunity through that pleading mechanism would undermine in large part the protections that [the Court] found neces sary in Imbler." Buckley, 509 U.S. at 283 (Kennedy, J., concurring in part and dissenting in part).

C. Absolute Immunity For Supervisory Prosecutors Is Nec essary For The Proper Functioning Of The Office Of The Prosecutor And The Judicial Process

The reasons identified by this Court in Imbler for extending absolute immunity to claims that a prosecut ing attorney deliberately withheld exculpatory informa tion in violation of Brady apply with equal or greater force to claims that a supervisory prosecutor deliber ately failed to establish procedures and to provide train ing that would have prevented a violation of a defen dant's constitutional rights. Indeed, there is no justifi cation for a rule that affords absolute immunity to a prosecuting attorney who intentionally withholds im peachment information and to a supervisor who inten tionally directs such a violation, but that would deny such immunity to a high-level supervisor who estab lishes a policy that caused an inadvertent violation of Giglio to occur. Supervisory prosecutors must be ac corded wide latitude to tailor how their offices will com ply with the duties imposed by Brady and Giglio, free of the threat that policy judgments will be second-guessed in suits seeking to impose personal liability. Thus, abso lute immunity is necessary to ensure "the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal jus tice system." Imbler, 424 U.S. at 427-428.

1. Denying absolute immunity to supervisory prose cutors for policies they set and their supervision and training concerning Brady and Giglio compliance would "present a substantial likelihood of vexatious litigation that might have an untoward effect on the independence of the prosecutor" and "[t]herefore[] absolute immunity of that function serves the policy of protecting the judi cial process." Burns, 500 U.S. at 492; accord Mitchell v. Forsyth, 472 U.S. 511, 521-522 (1985); Imbler, 424 U.S. at 426. As the District of Columbia Circuit has ex plained, if this Court were

to decline to insulate prosecutorial policymaking, an abundance of vexatious litigation would result. * * * Indeed, the threat to the policymaker may be ampli fied; he or she, as policymaker, faces the risk of re crimination from the potentially larger number of parties prosecuted in accordance with the agency directive. The threat of litigation is very real, and indubitably would inhibit the performance of prose cutorial duties.

Haynesworth, 820 F.2d at 1269-1270.7

The threat of a large number of lawsuits concerning a supervisor's role in a Giglio violation presents a direct and substantial risk of disrupting the functioning of the office of the prosecutor. "The presentation of such is sues in a § 1983 action often would require a virtual re trial of the criminal offense in a new forum, and the res olution of some technical issues by the lay jury." Imbler, 424 U.S. at 425. For instance, respondent would be re quired to prove that the failure to create procedures and regulations and to supervise and train in their use caused a non-disclosure of material evidence. See, e.g., Hartman v. Moore, 547 U.S. 250, 260 (2006); Crawford- El v. Britton, 523 U.S. 574, 593 (1998); see also Coyne v. Taber Partners I, 53 F.3d 454, 460 (1st Cir. 1995) ("cau sation questions are both factbound and case-specific").

One causation issue, for example, that could routinely arise in a case challenging Brady or Giglio policies is whether a given prosecuting attorney's non-disclosure was based on his own prosecutorial judgments in the case, the lack of adequate supervision, or the absence of adequate policies or procedures. The rule adopted by the court of appeals would place line prosecutors in an untenable position vis-a-vis their supervisors. If the line prosecutor, who presumably would be immune in all events, admitted that he made an actual judgment not to disclose, that would foreclose any claim against the su pervisors because of a lack of causation between the su pervisors' alleged omissions and the non-disclosure. Such a concession, however, would potentially subject the line prosecutor to professional sanctions by the court or his licensing bar. Supervisors, on the other hand, would have substantial litigation and institutional inter ests in establishing that their existing policies and pro cedures are fully adequate and appropriate. Such poten tial conflicts of interest would be enormously disruptive to prosecutors' offices and prosecutors thus could be "hampered in exercising their judgment * * * by con cern about resulting personal liability." Imbler, 424 U.S. at 426.

Suits such as respondent's would interfere with the office of the prosecutor in other ways. Those suits could involve "[t]he prosecutor's possible knowledge of a wit ness' falsehoods, the materiality of evidence not re vealed to the defense, * * * [and] the likelihood that prosecutorial misconduct so infected a trial as to deny due process." Imbler, 424 U.S. at 425. Respondent's claims would also involve prosecutorial deliberations made by the District Attorney, his chief deputy, other prosecutors in the District Attorney's Office who had dealings with Fink, as well as the attorneys who prose cuted respondent and who unquestionably are entitled to absolute immunity. "Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annu ally for hundreds of indictments and trials." Id. at 425- 426.

Even if a case against a supervisor does not proceed to trial, the burdens of discovery, including the produc tion of documents and potential depositions of prosecu tors, would significantly disrupt the function of the office of the prosecutor. E.g., Harlow v. Fitzgerald, 457 U.S. 800, 817-818 (1982) ("burdens of broad-reaching discov ery" are "peculiarly disruptive of effective govern ment"). And if supervisory prosecutors lost absolute immunity whenever the acts of prosecutors were alleg edly traceable to their actions (or inactions), few prose cutors would willingly accept a job as a supervisor. Cf. Robertson v. Sichel, 127 U.S. 507, 515 (1888) ("Compe tent persons could not be found to fill [supervisory] posi tions * * * if they knew they would be held liable for all the torts and wrongs committed by a large body of subordinates, in the discharge of duties which it would be utterly impossible for the superior officer to dis charge in person.").

"The affording of only qualified immunity to the [su pervisory] prosecutor also could have an adverse effect upon the functioning of the criminal justice system." Imbler, 424 U.S. at 426. As this Court explained in Im bler, collateral proceedings brought by a defendant chal lenging his conviction should be "focused primarily on whether there was a fair trial under law." Id. at 427. "This focus should not be blurred by even the subcon scious knowledge that a post-trial decision in favor of the accused might result in the prosecutor's being called upon to respond in damages for his error or mistaken judgment." Ibid. "The possibility of personal liability also could dampen the prosecutor's exercise of his duty to bring to the attention of the court or of proper offi cials all significant evidence suggestive of innocence or mitigation." Id. at 427 n.25. Those principles apply with special force in a case like this. Respondent successfully collaterally attacked his conviction by establishing that he was wrongfully convicted. The criminal justice sys tem would not have been well-served if those collateral proceedings had been influenced by concerns about ex posure of prosecutors to personal liability.

2. Qualified immunity is not an adequate substitute for absolute immunity for a supervisory prosecutor, and nothing justifies protecting line prosecutors absolutely, while exposing their supervisors to a greater hazard of liability. The defense of absolute immunity "defeats a suit at the outset," Imbler, 424 U.S. at 419 n.13, without regard to whether the law was "clearly established" at the time of the challenged conduct. Harlow, 457 U.S. at 818. Qualified immunity can also be denied or delayed if there are disputed questions of fact. See, e.g., John son v. Jones, 515 U.S. 304, 319-320 (1995). Such delay and litigation does not occur in cases involving absolute immunity because such suits are dismissed at the outset when the complaint alleges that the prosecutor violated his duties as a prosecutor.

Absolute immunity thus discourages suits from being brought and effectively brings to a rapid conclusion those suits that are brought. The prophylactic effect from defeating such suits at the outset goes to the heart of the rationale for absolute immunity, which seeks to avoid "harassment" and "a deflection of the prosecutor's energies." Imbler, 424 U.S. at 423 (quoting Pearson v. Reed, 44 P.2d 592, 597 (Cal. Dist. Ct. App. 1935)). "If a prosecutor had only qualified immunity, the threat of § 1983 suits would undermine performance of his duties no less than would the threat of common-law suits for malicious prosecution." Id. at 424. Thus, "the alterna tive of qualifying a prosecutor's immunity would dis serve the broader public interest." Id. at 427.

A rule that denies supervisory prosecutors absolute immunity from claims that they allegedly violated a con stitutional duty, like the disclosure obligation in Giglio that applies in all criminal cases, would have enormous adverse repercussions. Supervisors, such as petitioners in this case, are charged with the establishment of poli cies for the prosecution of all criminal cases in their of fices. That essential prosecutorial function would be hamstrung by subjecting supervisors to what could be a barrage of personal damages actions over prosecutorial policies and judgments.

3. Absolute immunity from personal damages lia bility does not leave supervisory prosecutors immune from other sanctions that deter prosecutorial miscon duct and punish wrongdoers. As an initial matter, Gig lio itself provides a strong incentive to establish robust policies favoring disclosure. As discussed, although the prosecution does not have a duty to establish any partic ular system for storing or sharing of impeachment infor mation within an office, a prosecutor who fails to gather and disclose material impeachment information in the hands of other prosecutors for whose knowledge he is accountable violates Giglio and the conviction will be reversed as a result. Supervisory prosecutors thus have every incentive to establish policies and procedures that ensure that prosecuting attorneys comply with the dic tates of Giglio. Moreover, as is the case with a line pros ecutor, supervisory "prosecutors are subject to profes sional discipline, public censure, and perhaps even crimi nal penalties for unsavory acts." Haynesworth, 820 F.2d at 1270; accord Imbler, 424 U.S. at 429.

Prosecutorial offices also often have their own inter nal mechanisms to address prosecutorial misconduct and ensure that prosecutors, including supervisors, meet the highest standards of ethical misconduct. In the fed eral system, for instance, the Office of Professional Re sponsibility (OPR) within the Department of Justice reviews and investigates allegations of prosecutorial misconduct, see United States v. Hasting, 461 U.S. 499, 506 n.5 (1983), often including alleged violations of Bra dy, Giglio, or discovery obligations under Rule 16 of the Federal Rules of Criminal Procedure. Office of Profes sional Responsibility, U.S. Dep't of Justice, Fiscal Year 2004 Annual Report 1 (OPR Annual Report) <http:// www.usdoj.gov/opr/annualreport2004.htm>; see, e.g., United States v. Derrick, 163 F.3d 799, 803 (4th Cir. 1998).

OPR has jurisdiction over all Department of Justice attorneys. Where investigation substantiates an allega tion of professional misconduct, OPR recommends a range of disciplinary action appropriate to the con- duct. OPR Annual Report 2. Supervisory prosecutors, from first line supervisors through Criminal Chiefs and First Assistants, are subject to the full range of disci plinary actions available under the law, from reprimand through suspension and removal. U.S. Attorneys' Man ual § 3-4.752 (Nov. 2007).

Furthermore, once a disciplinary action is final, OPR notifies the bar counsel in each jurisdiction in which an attorney found to have committed professional miscon duct is licensed. The bar referral policy includes find ings of intentional professional misconduct, as well as findings that an attorney acted in reckless disregard of a professional obligation or standard. OPR Annual Re port 2-3. Accordingly, a wide range of sanctions ensures that supervisory prosecutors fulfill their ethical duties and special role in the criminal justice system.

CONCLUSION

The judgment below should be reversed.

Respectfully submitted.

GREGORY G. GARRE
Acting Solicitor General
GREGORY G. KATSAS
Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
LISA S. BLATT
Assistant to the Solicitor
General
BARBARA L. HERWIG
MARK W. PENNAK
Attorneys

JULY 2008

1 The courts of appeals have accordingly held that a prosecuting attorney is entitled to absolute immunity for alleged Brady violations. See Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir. 2003); Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999) (per curiam); Moore v. Valder, 65 F.3d 189, 194 (D.C. Cir. 1995), cert. denied, 519 U.S. 820 (1996); Reid v. New Hampshire, 56 F.3d 332, 336 (1st Cir. 1995); Carter v. Burch, 34 F.3d 257, 262-263 (4th Cir. 1994), cert. denied, 513 U.S. 1150 (1995); Buckley v. Fitzsimmons, 20 F.3d 789, 794 (7th Cir. 1994), cert. denied, 513 U.S. 1085 (1995); Prince v. Wallace, 568 F.2d 1176, 1178 (5th Cir. 1978) (per curiam); Hilliard v. Williams, 540 F.2d 220, 221 (6th Cir. 1976) (per curiam).

2 The Ninth Circuit expressly did not determine whether respondent alleged a valid constitutional claim against petitioners but assumed the validity of the claim in resolving the immunity issue. Pet. App. 6. This Court took a similar approach in Buckley, 509 U.S. at 261, and Kalina, 522 U.S. at 122; cf. Saucier v. Katz, 533 U.S. 194 (2001) (establishing a different framework for considering qualified immunity claims). While the Court has not considered itself obligated to address the underlying constitutional claim in resolving absolute immunity claims, it could resolve the case by holding that the novel constitutional duty that the complaint invokes has no basis in the Due Process Clause or any other constitutional provision. At a minimum, however, if the Court decides this case based on the assumption made by the courts below, it should make clear that it is doing so solely for purposes of resolving the im munity issue decided below and that it is not embracing the novel con stitutional duty on which respondent's Giglio claims rest.

3 The lower courts have similarly held that prosecutors do not have a duty to learn of information possessed by other jurisdictions or other government agencies with no involvement in the investigation or prosecution at issue. See, e.g., United States v. Morris, 80 F.3d 1151, 1169 (7th Cir.), cert. denied, 519 U.S. 868 (1996); United States v. Meros, 866 F.2d 1304, 1309 (11th Cir.), cert. denied, 493 U.S. 932 (1989).

4 Supervisory prosecutors establish a range of policies for line pro secutors that are not required by the Constitution, but which still con stitute core prosecutorial acts. For example, the government has estab lished a policy generally restricting successive prosecutions (the "Petite policy"), which is not constitutionally compelled (see Petite v. United States, 361 U.S. 529 (1960) (per curiam); U.S. Attorneys' Manual § 9-2.031 (Oct. 2007)), but which would constitute a core exercise of pro secutorial discretion that would be protected by absolute immunity.

5 The Ninth Circuit purported to leave open the question whether "it may be possible for an act to be prosecutorial in function but adminis trative in form," because it mistakenly characterized policy formation, training, and supervision of Giglio issues to be "administrative." Pet. App. 13. In fact, it does not matter how policy formation and the other supervisory tasks are described in the abstract; the performance (or alleged nonfeasance) of the core prosecutorial task of complying withGiglio is itself prosecutorial whether carried out at retail by the line prosecutor or at wholesale by his supervisor.

6 See p. 13, supra. This case is thus far removed, for example, from a personnel action brought by an employee against a supervisor.

7 The threat of such lawsuits would, of course, be magnified if the court of appeals' decision were extended to suits challenging other prosecutorial policies, such as the handling of capital prosecutions, witnesses, grand juries, indictments, and plea negotiations. See gen erally U.S. Attorneys' Manual tit. 9 (June 2008).