Jackson Free Press

Former U.S. Attorney Dunn Lampton does not have immunity for allegedly disclosing the confidential financial documents of former Mississippi Supreme Court Judge Oliver E. Diaz and his wife, Jennifer.

The decision by a judicial panel of the conservative U.S. 5th Circuit Court of Appeals in New Orleans means Diaz is free to pursue his lawsuit against Lampton and his cousin Leslie Lampton for sharing Diaz' tax information with the Mississippi Commission on Judicial Performance.

The issue began with Dunn Lampton's failed prosecution of Diaz for bribery in 2005 and then for tax evasion in 2006. A federal jury acquitted Diaz of bribery, but after losing that case, Lampton then brought a federal charge of tax evasion against Diaz.

The jury found Diaz not guilty. Jennifer Diaz, however, pleaded guilty prior to the jury's 2006 acquittal after prosecutors warned her that she could lose custody of her children if she and her husband were both found guilty. Diaz said he and his wife discussed the issue prior to her plea and decided that one of them needed to be free to raise their children.

Diaz' acquittal would have been the end of it, had not copies of Diaz's tax returns, which Lampton subpoenaed for the tax-evasion case, wound up in the hands of the MCJP weeks after Diaz' acquittal. Lampton had filed a MCJP complaint over Diaz' conduct, which the commission dismissed in 2008.

The Diazes subsequently sued Lampton in federal court in 2009 for illegally releasing the sealed documents, but Lampton filed a motion to dismiss, arguing that he has "absolute prosecutorial immunity" to shield his decision to give the information to the commission. The district court denied Lampton's motion, so Lampton appealed to the U.S. Court of Appeals for the Fifth Circuit—again, unsuccessfully.

"Lampton ... asserts that immunity should extend to post-trial conduct instituting a new proceeding before a different tribunal. On its face, that conduct appears to be well outside the bounds of the common-law protection: Conduct undertaken after a federal prosecution is over is not part of the 'judicial phase,' and a state ethics proceeding is not part of 'the criminal process,'" the court opined.

The panel, which called his argument "novel," further stated that Lampton "is a federal prosecutor with no duty to bring complaints before a state ethics commission, and the actions for which he seeks immunity are unrelated to his prosecution of the Diazes."

"A prosecutor does not have carte blanche to do as he pleases with the information he can access. He can use it only to fulfill his duties as a prosecutor, and Lampton's actions went well beyond those bounds," the court wrote.

Leslie Lampton, an oil tycoon "worth $2 billion" according to Forbes, served as a layperson on the commission at the time it received Diaz' tax records, making him a suspect in the wrongful transfer of the federally subpoenaed information to the commission. Leslie Lampton resigned months after Diaz filed a complaint with the Internal Revenue Service about the unauthorized disclosure of his tax records, even though he could have held his slot with the commission until 2012.

Kevin Watson, Leslie Lampton's attorney, did not return calls, but told Raw Story in 2008 that his client did not retire because of Diaz' complaint: "He is 84 years old. He's given enough of himself," Watson said.

Normally, federal prosecutors are immune from lawsuits due to their prosecutions. In most cases, the U.S. Department of Justice viciously defends its prosecutors in the event of a suit. Lampton, however, is receiving no such protection in this suit. His private attorney, Madison lawyer Dennis Horn, did not return calls.

Diaz' attorney, former Supreme Court Justice Chuck McRae, demanded answers to a list of legal questions relevant to the suit in 2009, including admissions that Leslie Lampton communicated with his cousin about a judicial performance complaint prior to, during and following Dunn Lampton's federal complaint against Diaz. McRae also wants to know more about how Leslie Lampton helped Dunn Lampton file the Mississippi Judicial Performance Complaint against Diaz, despite warnings from Mississippi Commission on Judicial Performance Director Luther Brantley that he should not participate in commission matters filed by his relative.

McRae subpoenaed Brantley for information relative to the case in 2009. Brantley responded with a motion for a protective order. Madison County Circuit Court declared the case under seal, granting Brantley's motion. However, Dunn Lampton, who retired from the U.S. attorney's office in 2009, used his power as a third party to move the suit to federal court, where, perhaps, he thought the protective order would find more support. The judge there quickly removed the lower court's rule to seal the suit, however, releasing the case to the public.

Jackson attorney David McCarty, who also represents Diaz in the suit, said plaintiffs in the case have yet to get the details upon what happened behind the walls of the commission as they awaited a circuit court decision on Lampton's motion to dismiss.

"You're not allowed to do any depositions or discovery during the appeals process, so we've basically been in limbo for months," McCarty said.