Although appellant’s 22 page amended complaint, with 23 pages of exhibits, is admittedly repetitious and in places ambiguous, there is no question but that it charges appellee, Pachtman, with knowingly, wilfully and maliciously using eight different items of false material testimony in securing appellant’s initial conviction. If this is true, I believe that appellee violated appellant’s procedural due process rights, and that he should be stripped of his official or representative character and subjected in his person to the consequences of his individual conduct.
The Supreme Court decision in Scheuer, Adm’x. v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), the most recent expression of the Court on the overall subject, convinces me that, on these charges, the appellee does not have quasi-judicial, or any other immunity. True enough, Scheuer involved state executive, rather than judicial immunity. However, the Court in Scheuer, analyzed the long history behind executive, as well as judicial immunity, and noted that there was a “. . . similarity in the controlling policy considerations in the case of high echelon executive officers and judges . . ' (94 S.Ct. at 1691, n. 8); the policy considerations revolving, in large measure, around the continued assurance that public officials will continue to vigorously perform their public functions without threat of harassment by civil suit. All this being said, the Supreme Court went on to hold that high executive officers do not have an unqualified immunity from civil suit. The Court emphasized:
“Under the criteria developed by precedents of this Court, § 1983 would *1305be drained of meaning were we to hold that the acts of a governor or other high executive officer has ‘the qualify of a supreme and unchangeable edict, overriding all conflicting rights of property and unreviewable through the judicial power of the federal government.’ Sterling v. Con-stantin, 287 U.S. 378, 397 [53 S.Ct. 190, 77 L.Ed. 375] (1932).” 94 S.Ct. at 1692.
If, as held in Scheuer, the highest executive officer of a great state is not clothed with absolute immunity and, assuming that the policy considerations behind executive immunity are similar to those behind judicial immunity, then it must necessarily follow that a prosecuting attorney, shielded only by a form of judicial immunity (Robichaud v. Ronan, 351 F.2d 533 (CA9 1965)), should not be elevated to a status which would place him above the chief executive officer of his state. Otherwise, the office of the district attorney, rather than the Constitution of the United States, becomes the Supreme Law of the Land. Of course, under our system of government, such a conclusion is clearly untenable. State officials in these circumstances should not escape the paramount authority of the Federal Constitution. I quote from Sterling v. Constantin, 287 U.S. 378, 398, 53 S.Ct. 190, 195, 77 L.Ed. 375 (1932):
“When there is a substantial showing that the exertion of state power has overridden private rights secured by [the] Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression.”
Aside from my view that Scheuer is controlling, the cases cited by the majority, in my opinion, are clearly distinguishable. For example, in Ney v. State of California, 439 F.2d 1285 (CA9 1971), the appellant charged the district attorney, or his deputy, with knowingly using altered tapes. The facts revealed, however, that the district attorney’s deputy actually used the tapes and, therefore, if the district attorney could be sued at all, he would be liable only on a theory of respondeat superior. In Ney, this court stressed that the allegation of fact supporting the purported misconduct was based on “. . . much con-clusionary language . . . .” 439 F.2d at 1287. In the instant case, the factual allegations charge the district attorney with engaging in specific instances of misconduct wholly reprehensible to the integrity of the judicial process.
Donovan v. Reinbold, 433 F.2d 738 (CA9 1970), is no more enlightening. There, the action was against two city police officers and two city attorneys. This court held that the doctrine of immunity from civil suit under § 1983 would not bar an action against them. Nothing in Donovan even remotely indicates that a civil rights action should not lie on our facts. For that matter, the opinion recognizes that:
“[t]he purpose of according judicial immunity is to protect the integrity of the judicial process. It is not to shield lawyers or judges from liability for the invasion of another’s federally secured constitutional rights, when the alleged invasion did not occur during the performance of acts that are an integral part of the judicial process.” 433 F.2d at 743. [Emphasis supplied]
To now hold, on our facts, that the knowing, wilful and malicious use of perjured testimony to gain a conviction, even though accomplished during the course of a trial, constitutes an integral part of the judicial process, flies in the very face of the integrity sought to be protected by judicial and quasi-judicial immunity.
The allegations in Marlowe v. Coakley, 404 F.2d 70 (CA9 1968) charged the prosecuting attorney with “. knowingly and wilfully, or with gross negligence, present[ing] perjured testimony to the grand jury . . . .” [Emphasis supplied] Needless to say, there is a monumental distinction between charging an officer with gross *1306negligence in connection with the presentation of perjured testimony and charging him with knowingly, wilfully and maliciously using perjured testimony to obtain a conviction. Consequently, the decision of the Marlowe court could well rest on the failure of the complainant to clearly charge wilful misconduct in presenting the perjured testimony. Cf. Ney v. State of California, supra, 439 F.2d at 1287. The alternative does not equate with wilful action. I decline to hold that the shield of immunity should rest on the brow of a district attorney who knowingly, wilfully and maliciously utilizes perjured testimony to obtain a conviction. This conduct should not be condoned as an integral part of the judicial process.
Clark v. State of Washington, 366 F.2d 678 (CA9 1966), recognizes the rule that a prosecuting attorney enjoys immunity under the Civil Rights Act only insofar as his prosecuting functions are concerned. At the risk of being repetitive, I again stress that appellee’s acts, as charged in the amended complaint, had nothing to do with his legitimate prosecutory functions.
In Agnew v. Moody, 330 F.2d 868 (CA9 1964), cert. denied 379 U.S. 867, 85 S.Ct. 137, 13 L.Ed.2d 70, the court there sidestepped the contention that the doctrine of official immunity did not apply where the wrongful act was of an extraordinary character, as that phrase was used in Tenney v. Brandhove, 341 U.S. 367, 378-379, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), by saying, ”[i]f such an indefinite exception to the immunity rule exists, we are satisfied that appellant’s case does not fall within it.” 330 F.2d at 869. Scheuer, supra, makes it clear that the doctrine of official immunity does not apply in cases where the wrongful act is of an extraordinary character.
Hilliard v. Williams, 465 F.2d 1212 (CA6 1972), cert. denied 409 U.S. 1029, 93 S.Ct. 461, 34 L.Ed.2d 322, is closely in point. There, the court, in a civil rights action, recognized the general rule that a prosecuting attorney, when acting in his official capacity, is immune from a suit for damages. The court then goes on to hold that the doctrine of quasi-judicial immunity, normally shielding a prosecuting attorney, should not be extended to the situation where a complaint charges that the officer deliberately suppressed material evidence which resulted in the conviction of the appellant. The court emphasized that such wilful conduct was “. outside [the officer’s] quasi-judicial capacity and beyond the scope of ‘duties constituting an integral part of the judicial process.’ ” 465 F.2d at 1218.
On the charges before us, I would hold that appellee acted entirely outside the scope of his jurisdiction and should not be permitted to shelter himself from liability by a plea that he was acting under the immunity of his office. Not to be forgotten is the high responsibility accepted by a prosecuting officer when he enters upon the duties of his office. For example: (1) he is required to recognize that in our system of justice, the accused is to be given the benefit of all reasonable doubt; (2) his decisions during the course of the prosecution must be fair to all, including the defendant; (3) he has a duty of timely disclosure to the defense of all available evidence known to him that tends to help the defendant, and (4) it is his duty to seek justice, not pervert it by placing a conviction above the constitutional rights of the accused. It is time to recognize that prosecutors are not entirely above the law which holds other individuals financially accountable for their intentional misdeeds.
Needless to say, I express no opinion as to the merits of appellant’s claims. I only say that on the basis of the allegations in the amended complaint, he is entitled to have a full-fledged judicial inquiry.
I would reverse.