Date: 11-21-2001

Case Style: Jefferson County Commonwealth Attorney's Office, et al. v. David Kaplan, et al.

Case Number: 1999-SC-0982-DG

Judge: Johnstone

Court: Supreme Court of Kentucky

Plaintiff's Attorney: A.B. Chandler, III, Attorney General, et al.

Defendant's Attorney: George R. Carter, Louisville, Kentucky for David Kaplan. James M. Herrick, Kentucky State Police Legal Department, Frankfort, Kentucky for Kenneth Rider. Donald M. Heavrin, Louisville, Kentucky for Gary Wayne Puckett

Description: Gary Wade Puckett sued David Kaplan for legal malpractice in connection with Kaplan’s representation of Puckett in a criminal case. Kaplan joined two prosecutors and a Kentucky State Police chemist as third-party defendants. The trial court found that the third-party defendants were immune from suit and that Kaplan was not entitled to indemnity, contribution, or apportionment from the third-party defendants. For these two reasons, the trial court dismissed Kaplan’s third-party complaint. The Court of Appeals affirmed the trial court’s ruling as to the prosecutors and affirmed as to the chemist on different grounds. Further, the Court of Appeals indicated, but did not specifically hold, that fault could be apportioned against the prosecutors and the chemist. We affirm in part, and reverse in part.

In June 1994, Gary Puckett was tried for wanton murder and arson. Kaplan represented Puckett at trial. Anne Haynie and Thomas Dyke represented the Commonwealth. The prosecution relied heavily on the fact that expert testimony revealed the presence of accelerants on debris taken from the fire and from the clothes worn by Puckett near the time the fire started. But in fact, there was no identity among the accelerants. The chemical composition of the accelerants found on remnants from the fire was different from the chemical composition of the accelerant found on Puckett’s clothes.

The lack of identity in the accelerants was not revealed in the report prepared by Kenneth Rider, the KSP chemist who testified for the Commonwealth. But Rider’s notes regarding his analysis and the gas chromatograms did reveal the discrepancy. The Commonwealth disclosed the report, but did not include Rider’s notes or the gas chromatography results. Kaplan neither specifically requested these during discovery nor retained an expert to review the report’s results and conclusions.

Puckett was convicted of all charges and sentenced to life imprisonment on the murder conviction and twenty-five years on the arson conviction. On his matter-of-right appeal, this Court affirmed both his conviction and sentence. After his judgment was affirmed on appeal, Puckett and the Commonwealth Attorney’s Office made a joint motion to vacate the judgment and grant a new trial. The motion was based on the Commonwealth’s acknowledged failure to appreciate the exculpatory nature of the lack of identity of the accelerants found on the fire debris and those found on Puckett’s clothes. The trial court granted the motion. In September 1996, Puckett was acquitted of all charges against him at retrial.

After his acquittal, Puckett filed a legal malpractice action against Kaplan. In the complaint, Puckett alleged that Kaplan’s ineffective assistance of counsel.caused his wrongful conviction. Puckett claimed, in part, that Kaplan was negligent in failing to discover lack of identity among the accelerant evidence and in failing to have the chemist’s report subjected to independent expert analysis. In turn, Kaplan joined Haynie, Dyke, and Rider as third-party defendants.

The third-party defendants moved to dismiss the complaint against them. The trial court found that Haynie and Dyke were immune from suit and found that Kaplan’s third-party complaint failed to state a claim upon which relief could be granted. On these grounds, the trial court granted the motion to dismiss. The Court of Appeals held that Haynie, Dyke, and Rider were absolutely immune from suit and affirmed the trial court’s summary judgment in their favor. Finally, the Court of Appeals indicated, but did not specifically hold, that fault could be apportioned against Haynie, Dyke, and Rider.

On appeal, Kaplan argues that Haynie and Dyke are entitled to only qualified immunity and that a material issue of fact exists as to whether they are entitled to immunity in this case. Further, he argues that there are genuine issues of material fact as to Rider’s negligence and whether he is entitled to immunity. Finally, he argues that regardless of the immunity questions, he is entitled to apportion fault against all three under KRS 411.182.

PROSECUTORS’ IMMUNITY

In the amended third-party complaint, Kaplan alleges that Haynie and Dyke failed to disclose exculpatory evidence as required by the trial court’s pre-trial order, which failure compromised Kaplan’s ability to effectively represent Puckett at his first trial. These allegations occurred beyond the investigation phase of the case. Rather, the alleged failure to disclose evidence occurred at a point in time when the prosecutors were acting as advocates. Thus, we hold that the prosecutors are entitled to absolute immunity. See Bucklev v. Fitzsimmons, 509 U.S. 259, 273-74, 113 S. Ct. 2606, 2616, 125 L. Ed. 2d 209, 226 (1993).

Our holding reflects the policy decision made by this Court in McCollum v. Garrett, Ky., 880 S.W.2d 530 (1994), in which we drew a distinction between a prosecutor’s role as investigator and his or her role as an advocate for the Commonwealth:

During the time in which [the prosecutor] essentially acted as an investigator, the protection available to him was qualified immunity. Upon the commencement of prosecution and the assumption of his role of prosecutor, [the prosecutor’s] immunity became absolute.

Id. at 535.

In a case involving facts similar to those in the case at bar, the U.S. Supreme Court articulated why it made the same policy choice as we made in McCollum and reaffirm today:

[S]uits that survived the pleadings would pose substantial danger of liability even to the honest prosecutor. The prosecutor’s possible knowledge of a witness’ falsehoods, the materiality of evidence not revealed to the defense, the propriety of a closing argument, and -- ultimately in every case -- the likelihood that prosecutorial misconduct so infected a trial as to deny due process, are typical of issues with which judges struggle in actions for post-trial relief, sometimes to differing conclusions. The presentation of such issues in a § 1983 [civil] action often would require a virtual retrial of the criminal offense in a new forum . . . . It is fair to say, we think, that the honest prosecutor would face greater difficulty in meeting the standards of qualified immunity than other executive or administrative officials. Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.

lmbler v. Pachtman, 424 U.S. 409,42526, 96 S. Ct. 984, 992-93, 47 L. Ed. 2d 128, 140-41 (1976) (emphasis added).

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Click the case caption above for the full text of the Court's opinion.

Outcome: Affirmed in part, and reversed in part.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None