From: legal_reality
Subj: Fwd: Are you paying attention USAG Eric Holder?
Subj: Fwd: Are you paying attention USAG Eric Holder?
31 January A.D. 2014
About the 7th Circuit. That was the court that introduced this author, by means of a "padded 2x4," to that next phase of our present legal reality. It was that learning, via The Terre Haute Litigation, in which this author's original, as in prior, 100% "constitution-ist" perspective and argument was completely shredded as (1) frivolous, (2) without merit, (3) of no authority, and (4) ludicrous, that compelled the writing of "We, The Posterity: Voluntary Bondage." [ http://freedom-school.com/legal-reality/your-government-at-work.html ]
They sit in Chicago.
It was the 7th Circuit that was completely overhauled in years past for matters of judicial corruption (Operation Greylord). Suffice it to say that they're "sensitive" to the matters of judicial corruption, thus to matters of prosecutorial corruption.
We'll follow the matter and see if the Supremes address the matters raised or allow this particular ruling to stand.
Harmon L. Taylor
Legal Reality
Dallas, Texas
Subscribe / unsubscribe : legal_reality@earthlink.net
About the 7th Circuit. That was the court that introduced this author, by means of a "padded 2x4," to that next phase of our present legal reality. It was that learning, via The Terre Haute Litigation, in which this author's original, as in prior, 100% "constitution-ist" perspective and argument was completely shredded as (1) frivolous, (2) without merit, (3) of no authority, and (4) ludicrous, that compelled the writing of "We, The Posterity: Voluntary Bondage." [ http://freedom-school.com/legal-reality/your-government-at-work.html ]
They sit in Chicago.
It was the 7th Circuit that was completely overhauled in years past for matters of judicial corruption (Operation Greylord). Suffice it to say that they're "sensitive" to the matters of judicial corruption, thus to matters of prosecutorial corruption.
We'll follow the matter and see if the Supremes address the matters raised or allow this particular ruling to stand.
Harmon L. Taylor
Legal Reality
Dallas, Texas
Subscribe / unsubscribe : legal_reality@earthlink.net
-------- Original Message --------
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Subject:
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Are
you paying attention USAG Eric Holder?
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Date:
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Thu,
30 Jan 2014 10:32:33 -0500
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Seventh Circuit Rules Prosecutor Can Be Sued For Abusive
Investigation and Misconduct
In an important decision on immunity,
the United States Court of Appeal for the Seventh Circuit has ruled that a
prosecutor is not protected by immunity for allegedly coercing false testimony
that sent a man to death row 17 years ago. Two prosecutors were accused of
egregious misconduct: Lawrence Wharrie and David Kelley. The new opinion from
the Seventh Circuit is Fields v. Wharrie, 2014 U.S. App. LEXIS
1333.
The case involved
the conviction in 1986 of street-gang member Nathson Fields for two murders. He
was sentenced to death but granted a new trial in 1996 (I will just note that
for those who complain of the long appeals in these cases, this is an example of
how those appeals reveal fundamental wrongdoing and injustice ten years later).
The new trail was based on the disclosure that the trial judge, Thomas Maloney,
had accepted a $10,000 bribe from Fields’ co-defendant, Earl Hawkins, for his
own acquittal. Maloney — showing a misplaced or belated form of honesty — later
returned the money after Hawkins’ conviction (and disclosure of a federal
investigation).
The second trial resulted in the
acquittal of Fields after various witnesses recanted their testimony. That
trial revealed misconduct and coercion by the prosecution to secure false
testimony. Fields then sued Lawrence Wharrie and David Kelley for his then 17
years of incarceration. The prosecutors insisted that they had immunity and the
district court agreed. However, later on reconsideration, the court stripped
Wharrie of qualified immunity for his role in the investigation.
The matter went to a Seventh Circuit
panel, which included conservative icon, Richard Posner. Writing for the
majority, Posner held that it would be absurd to allow such prosecutors to
claim immunity in such cases. Posner writes with his usual clarity and with
some passion in rejecting immunity in a case of prosecutorial immunity:
Wharrie is asking us to bless a
breathtaking injustice. Prosecutor, acting pre-prosecution as an investigator,
fabricates evidence and introduces the fabricated evidence at trial. The
innocent victim of the fabrication is prosecuted and convicted and sent to
prison for 17 years. On Wharrie’s interpretation of our decision in Buckley,
the prosecutor is insulated from liability because his fabrication did not
cause the defendant’s conviction, and by the time that same prosecutor got
around to violating the defendant’s right he was absolutely immunized. So: grave
misconduct by the government’s lawyer at a time where he was not shielded by
absolute immunity; no remedy whatsoever for the hapless victim.
In discussing the Supreme Court’s
1993 decision in Buckley v. Fitzsimmons, 509 U.S. 259
(1993), Posner added that “A prosecutor may not shield his investigative work
with the aegis of absolute immunity merely because, after a suspect is
eventually arrested, indicted, and tried, that work may be retrospectively
described as ‘preparation’ for a possible trial; every prosecutor might then
shield himself from liability for any constitutional wrong against innocent
citizens by ensuring that they go to trial.”
The “breathtaking injustice”
described by Posner however was not enough for Judge Diane Sykes who wanted to
extend immunity to the prosecutor.
Putting aside Sykes’ dissent, many
will likely find it surprising that a prosecutor still has immunity for
outrageous acts like coercion and soliciting false testimony if it occurs at
trial. I have long had difficulty with that shield of immunity in cases of
knowing abuses, but this case reaffirms an important protection for pre-trial
conduct.
You can access the opinion: here
30
Responses
Hooray!
THANK GOODNESS!! Putting these judges
on ourhttp://www.seeking-justice.org WALL OF
FAME!! Delighted the Seventh is adding to what the Ninth has started in holding
prosecutors accountable for their misconduct. It’s way past due.
Wow. Maybe this decision will help clean up prosecutorial
abuse. Professor,
I hope it helps you in the Sister Wives litigation. I can understand that the courts do not want prosecutors to be always looking over their shoulder’s so the immunity is necessary. However, when it is proven that these kind of abusive and improper activities were undertaken by the prosecutors, how can a man go to death row on false evidence promoted and introduced by the prosecutors themselves. Amazing.
I hope it helps you in the Sister Wives litigation. I can understand that the courts do not want prosecutors to be always looking over their shoulder’s so the immunity is necessary. However, when it is proven that these kind of abusive and improper activities were undertaken by the prosecutors, how can a man go to death row on false evidence promoted and introduced by the prosecutors themselves. Amazing.
Proved intentional misconduct should
not qualify for any kind of immunity at any stage. As Judge Kozinski said
recently in his dissent from denial of rehearing in Olsen, “There is an
epidemic of Brady violations abroad in the land.” Only our Judges can put a
stop to it. Congress could also pass the Fairness in Disclosure of Evidence Act.
Wait until you see the book coming soon–Licensed To Lie!
In one of the older Tort hornbooks that professor Prosser
wrote, he made a statement “I can not understand how Americans allowed the
doctrine of ‘the king can do no wrong’ to find its way across the ocean to
reinfect us with the various forms of sovereign immunity we left in England”
(paraphrased).
The Federal Court of Appeals for the Fifth Circuit put
it this way:
The Government presents an impressive array of theories
which would preclude it from any liability … we … hold that the Government
should escape unscathed … It is often said that the doctrine of sovereign
immunity is a derivative of the common law maxim “The King can do no wrong.”
But conceptually it is far older. Zeus himself carried an aegis or breastplate,
a buckler, and a thunderbolt which made him, the mythological sovereign, immune
from all that could beset him. And common law provided its sovereign with the
immunity of Zeus … The tide of history is running clearly against the concept
of sovereign immunity. The disfavor into which the doctrine has fallen was
observed as far back as … 1939 … [and] this Court pointed out that the assault
upon the citadel of immunity continues presently apace.
(The Battle of Immunities &
Diseases). Well, the people did not let it back into our culture,
the judiciary did.
They should fix it because it brings much evil into our
culture.
Reblogged this on Dead Citizen's Rights Society.
Oh boy do I like this decision! I wish it could be made
retroactive! Many notorious abuses have been made by prosecutors in my county
jurisdiction.
Judge Diane Sykes was on the Wi.
Supreme Court. She was appointed to the 7th Circuit by W. Judge Sykes has never
impressed me as a judge in Wi. I know attorneys who have been before her in
both venues. She’s not bad, for the most part, although her opinion on this is
really bad. The consensus is she’s a ham n’ egger. She was married to a
conservative Milwaukee talk show host, Charlie Sykes. Hurrah for Posner!! Boo
for Sykes.
Why shouldn’t prosecutors have to look over their shoulder
? Other professionals have to…..
I want to see what the cop and psych
have to say….. But… I think that this is a good decision and start….. The
opinion didn’t go far enough to strip immunity….. Of known perjured
testimony…..and the active concealment…..
The public policy underlying immunity is not served when
falsified evidence is intentionally submitted to the court. Immunity is not
intended to be a shield against perversion of the judicial process.
Accordingly, no benefit is derived by protecting this sort of misconduct. To
the contrary, it undermines public confidence in the justice system, and it is
that confidence that provides the courts their moral, as opposed to merely
functional, authority.
Having said that, what happened to the single Mulligan
rule?
Clinton would used about 10 mulligans
a round.
A good first step but not far enough! When will the
criminal charges be filed?
A ruling like this could empty Texas’
jails.
There’s our rules and then there’s their rules. We get hit
hard for the most minor of infractions; they get coddled for the most egregious
of wrongdoing.
And they say we overthrew the king in 1783. I think he
just changed clothes.
For those students of the language
interested in the word “sophistry,” here’s some reasoning from the dissent
seeking to give the prosecutors a pass because of the timing of their
malfeasance:
Constitutional rights—and the
corresponding duties imposed on governmental actors—are not like the
generalized rights and duties imposed by negligence law. They are implicated at
specific times and in specific circumstances. As relevant here, Fields’s
due-process rights came into play after he was charged; the Brady disclosure
duty is an aspect of the right to a fair trial, as is the broader right not to
have the trial process subverted by the knowing introduction of falsified
evidence. See Serino, 735 F.3d at 592; Newsome, 256 F.3d at 751–52; Buckley, 20
F.3d at 796–97. So Wharrie’s act of extracting a false statement from Sumner
during the investigative phase of the case did not violate Fields’s due-process
rights. A prosecutor who commits this kind of misconduct has behaved deplorably
but has breached no constitutional duty and thus committed no constitutional
wrong.
Certainly, a government actor who
intentionally seeks out false evidence to convict an innocent man has no constitutional
exposure for his deeds pre-charging. That little part about not being being
“deprived of life, liberty, or property, without due process of law” is just a
little puffery, of course. Nothing to see there, move along.
Part of due process of law is having
honest and ethical people bringing criminal charges based on real evidence and
not fabricated evidence. It’s the whole process we’re after not just the part
at the courthouse. You can check with Ernesto Miranda if you don’t believe me.
That’s also the founders view. Here’s
a quote you might recognize on the topic:
“A single zealot may commence
prosecutor, and better men be his victims”
~Thos. Jefferson
Sue them! Heck, let’s prosecute them and lock their asses
up!
Let us distinguish, when we employ
the word or concept of “immunity”, between a civil suit against a state
prosecutor under section 1983, and a criminal prosecution against a prosecutor.
Posner is overall a good judge. He
did right here. The other judge ought to rethink some things. Perhaps someone
on the blog here will send her the posts. She could attend constitutional law
courses at John Marshall or the University of Chicago while she is in Chicago
on the bench.
I think it would be just to prosecute
this prosecutor and his co conspirators in criminal court. He should do the
same amount of time as the victim here.
When his time comes to meet his maker
he will not be able to talk his way out of these sins. I would hate to have to
share a cell in Hell with a perp like him.
I respectfully submit that Judge Sykes’ dissent is
specious nonsense. Of course, she also thinks that corporations can have
religious beliefs.
[…] Read the story by Jonathan Turley
here. […]
Several tears ago , in another jurisdiction , an evil
prosecutor was tried and convicted .
His neck was not immune from the blade , which ended his evil conduct .
His neck was not immune from the blade , which ended his evil conduct .
Jefferson also observed of the necessity that tyrants shed
several drops of blood now and then .
.
.
