Whistleblowing Deputy Allowed To Sue District Attorney

In a federal court lawsuit, Rene Botello, a former sexual assault investigator for the Washoe County, Nevada Sheriff’s Office, made a number of allegations against the Washoe County district attorney. Botello alleged that he learned that Nurse Lily Clarkson, who regularly testified as a medical expert in child sexual assault cases, was “indisputably wrong” in a medical finding that a certain female child had been sexually penetrated, had no hymen and was the clear victim of sexual abuse. In addition, Botello learned that Clarkson was equally mistaken in her conclusion that the child’s sister was similarly injured.

In separate follow-up examinations of the sisters, three pediatricians in three different medical facilities found that there was no physical evidence to support Clarkson’s findings that the children had been sexually assaulted. The doctors who performed these follow-up examinations informed Botello that Clarkson’s medical findings were in “gross error.” Given Botello’s awareness that suspects were routinely arrested on Clarkson’s findings and convicted as a result of her testimony, his discovery deeply disturbed him.

Botello decided it would be wrong for him to remain silent and that he needed to bring evidence of Clarkson’s wrongful medical findings to the appropriate officials. He brought his discovery to the attention of his supervisors, including the district attorney, Richard Gammick, and a deputy district attorney, John Helzer, who regularly utilized Clarkson’s testimony in procuring sexual assault convictions.

Botello alleged that in response to his disclosures, the prosecutors became angry, accused Botello of not being a “team player,” and warned him to “keep his mouth shut about Clarkson’s testimony.” Gammick and Helzer threatened to retaliate against Botello should he continue to advocate oversight of the child abuse program. Alarmed by their unexpected response, Botello reported his concerns about the program and his further concerns about a possible cover-up to the Nevada Attorney General’s Office and the Federal Bureau of Investigation. Concurrently, Botello resigned from his job and applied for employment with the Washoe County School District Police Department.

Botello alleged that he experienced immediate retaliation from Gammick and Helzer. Unaware that Botello had already secured his new job with the School Police, Gammick and Helzer telephoned his new employer in an effort to dissuade it from hiring Botello. During the telephone conversation, Gammick and Helzer made a number of allegations about Botello’s character and performance that Botello claimed to be false. Failing in their efforts to prevent Botello from being hired, they attempted through follow-up communications to have him fired.

In oral and written communications to the School Police, the prosecutors insisted that Botello must not be permitted to participate in any investigation, and emphasized that the DA’s office would refuse to file any case where Botello participated in any phase of the investigation, no matter how preliminary, no matter whether other investigators were available to testify. Because of their threats, Botello’s employer assigned him to desk duty. Botello filed a complaint alleging that the prosecutors’ conduct violated his First Amendment free speech rights. A trial court dismissed Botello’s lawsuit on the grounds that the prosecutors had “absolute immunity.” Botello appealed to the federal Ninth Circuit Court of Appeals.

The Appeals Court reversed the dismissal in Botello’s lawsuit. The Court held that prosecutors have absolute immunity from liability for their conduct only insofar as the conduct is “intimately associated with the judicial phase of the criminal process. However, when prosecutors perform administrative or investigative functions, only qualified immunity is available.” Under the law, qualified immunity can be lost if an individual acts either intentionally or recklessly in disregard of another’s rights.

The Court found that the prosecutors were not entitled to absolute immunity for their telephone calls to the School Police attempting to dissuade the agency from hiring Botello. As the Court viewed it, “when they involved themselves in the School Police Department’s personnel decision whether to hire Botello, they were at best performing an administrative function and, as such, could only be entitled to qualified immunity. Their defamatory comments about Botello were simply an attempt to disrupt an employment decision.”

The Court did rule in the prosecutors’ favor on the issue of their refusal to prosecute any cases where Botello participated in any phase of the investigative process. While the Court admitted that the prosecutors’ statements “give us pause,” the Court nonetheless found that “their decision not to prosecute Botello’s cases and the communication of that decision is intimately tied to the judicial process and is thus entitled to absolute immunity.”

The prosecutors’ demands that Botello be barred from participating in any aspect of the investigation fared less well with the Court. The Court observed that “in insisting that Botello be barred from any aspect of the investigative process, Gammick and Helzer were in essence dictating to local law enforcement authorities how future criminal investigations should be conducted and staffed – an administrative function. The prosecutors sought to usurp the staffing decisions a chief might make to use Botello in ways that would not compromise the criminal prosecution and would comport with the prosecutors’ non-prosecution policy. We fail to see why the prosecutors should be entitled to absolute immunity when they stepped into the shoes of the Chief, who would at most be entitled to only qualified immunity as an administrative decision maker.”

The Court reinstated Botello’s lawsuit on all counts except with respect to the prosecutors’ announced decision not to prosecute Botello’s cases.

Botello v. Gammick, 2005 WL 1475387 (9th Cir. 2005).

This article appears in the August 2005 issue