The U.S. Court of Appeals for the 2nd Circuit, in a surprising move, affirmed a multimillion dollar jury verdict against a New York prosecutor (Special Assistant Attorney General) for omissions in evidence presented to the grand jury and that was used to obtain an indictment (that was dismissed down the road after a BENCH trial).
First of all, that a person was acquitted after a bench (no-jury) trial, simply by a judge, is refreshing.
Second, it shows that those who plea and do not go to trial on the grand jury indictments - or who forego indictments completely, agreeing instead to prosecution by a Superior Court Information - lose out an opportunity to be acquitted because of discrepancies in presentations to the grand jury, because only in a trial portions of grand jury minutes (the so-called Rosario material) become disclosed, otherwise they are concealed by grand jury secrecy.
Third, what is valuable in the Morse v Fusto decision, made on September 11, 2015 by the 2nd Circuit, is that omissions may be charged as fabrications, if such omissions could create a false impression of culpability in the grand jury, and if such omissions or fabrications of evidence happened during investigation by the prosecutor.
Fourth, since the distinction between no immunity and absolute prosecutorial immunity lies in the factual analysis whether the fabrication or omission occurred during the investigative stage (no immunity) or preparation-for-the-grand jury stage (absolute prosecutorial immunity), that distinction may not be made by a judge and must be submitted for fact-finding to a jury in a civil rights case.
Which, after Morse v Fusto, will translate to more settlements.
But, fifth, I wonder whether the taxpayers will have to pay the multi-million dollar jury verdict in the Morse v Fusto case, or whether the defendants who were involved in fabrications that was not part of their duties, will have to pay out of their own pockets, including for their legal defense.
Which would be more fair, don't you think?
Now, after Morse v Fusto, is the Delaware County judicial candidate, Delaware County District Attorney Richard Northup exposed to liability for presentation of evidence with "omissions" amounting to falsifications to the grand jury in the case People v Barbara O'Sullivan that Richard Northrup is relentlessly pursuing on behalf of his employee, the alleged victim's uncle who works for Richard Northrup as an investigator?
THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.
It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.
" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
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