"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.

Tuesday, September 29, 2015

The new case in the 2nd Circuit denying immunity for prosecutorial misconduct - the window is too narrow to address wrongful convictions

I've written on this blog recently about a new case decided by the U.S. Court of Appeals for the 2nd Circuit where the 2nd Circuit denied a criminal prosecutor ANY immunity for presenting to the grand jury "summaries" of billings in a Medicaid fraud case with omissions that were misleading and amounted to misrepresentations.

Thus, the court affirmed a multi-million verdict against the prosecutor that, most likely, will not be paid out of the prosecutor's own pocket, but will be put on us, the taxpayers - which is, of course, grossly unfair, since public officials must pay out of their own pocket for their own wrongdoing.

Yet, while analyzing this case further, I came to the conclusion that the new precedent has an extremely narrow application and will not be applicable to wrongful convictions.

Morse v Fusto involved an extremely rare case of acquittal, which was even more rare that the acquittal was in a bench trial.  Judges, in trials sitting without a jury, usually convict.

And, this double-rarity may explain why immunity was denied.  It was an egregious case, and it was a kind of a "class of one", to a certain degree, because, once again, an acquittal in a bench trial happens as often as, probably, being twice struck by a lightning.

New York has a serious problem about wrongful convictions though, and with non-enforcement of attorney discipline against criminal prosecutors who mastermind such wrongful convictions.

Reasons for such non-prosecution are very transparent.

If you look at the background of the majority of appellate judges and of supreme court and county court-level trial judges, the majority of them have a prosecutorial background.

Thus, any unraveling of wrongful convictions and disciplining people who were prosecutors who brought about those wrongful conviction can very well result in prosecution of a judge, and judges are controlling attorney discipline, so, same as judges invented absolute immunity for malicious and corrupt acts for themselves and for their breeding stock, the prosecutors, judges also prevent disciplining their breeding stock, with all fake assurances to the public that that is not happening, and that prosecutorial immunity is given based on a promise of availability of prosecutorial discipline.

The situation with non-discipline of prosecutors already resulted in a string of articles by specifically targeting non-disciplining prosecutors who mastermind wrongful convictions, and in a legislative Bill S24 pushing for creation of a special Commission dealing exclusively with prosecutorial misconduct.

While I have mixed feelings about this "Commission" because it is being "modeled" on the Commission for Judicial Conduct which operates as nothing but a glorified shredder of complaints against judges, the whole idea of creating this separate Commission for Prosecutorial Conduct, as well as the mixed vibes sent by the NYS Statewide Commission for Attorney Discipline that, on the one hand, denies existence of nonenforcement of attorney discipline against criminal prosecutors and, on the other hand, attempts to derail efforst at creating the Commission dealing with prosecutorial misconduct, is an indictment to the system of attorney regulation.

The fact that a separate Commission had to be created for the most powerful class of attorneys, and that is being done because of irrefutable statistics that New York has an extremely high rate of wrongful convictions, and evidence that wrongful convictions are caused by prosecutorial misconduct, which remains unaddressed by the existing disciplinary committees.

Yet, if the existing system does not address misconduct that causes the most harm to the public, why does it exist at all?

And shouldnt' then New York criminal prosecutors, as a matter of honor, waive immunity that was given to them on a promise to the public that discipline against prosecutors is available.  If discipline is unavailable, shouldn't prosecutors return the conditional gift of absolute immunity because the condition is not being satisfied?


All that said, let us see what will happen in scenarios that do not involve an acquittal, as it did in Morse v Fusto case where the prosecutor was not given any immunity and a multimillion dollar jury verdict against the prosecutor for preparing and presenting false evidence to the grand jury stood.

Those scenarios may include:

  • wrongful conviction where a defendant was coerced into a plea by threats
  • a wrongful conviction where a defendant took the plea for reasons unrelated to his or her guilt or innocence, but rather related to the existence of the death penalty in this country, which is an irreversible event if it happens, with the hope that at some point justice will be served, the conviction will be overturned and the convicted person will be still alive to enjoy it - and went to prison for life as a murderer and, possible, child molester and murderer for the crime the defendant did not commit, because the defendant knew that nature of the charge will incite the jury so much that a death penalty, if requested by prosecutors, is a given, and prosecutors do usually request death penalty if it is available because, see above, prosecutorial positions are a path to judgeships, and judges are elected on "being tough on crime" platform;  over 95% of convictions in this country occur through pleas, where issues were never tried and there is no assurance that those 94% of convictions that are bankrupting the country through the necessity to support the prison system and that already resulted in a human rights crisis of gigantic proportions, are not all wrongful convictions;
  • a wrongful conviction because prosecution fabricated evidence at trial and/or presented perjured witnesses - that would be the Morse v Fusto situation, but in Morse v Fusto there was an acquittal, not a conviction.
An acquittal, as I mentioned before, is very difficult to obtain.

Most criminal trials, whether bench trials, or jury trials in the U.S., end in convictions, that's why plea bargaining is so popular.

Prosecutorial misconduct and presenting to the grand jury or to the trial jury of fabricated evidence, with complete immunity for prosecutors, is a factor in why criminal trials mostly end up in convictions, and why plea bargaining is so popular - defendants and their attorneys know about the problem and use plea bargaining as a hedging technique, picking the best of the two evils - to be convicted and sentence to  maximum, as charged, and prosecutors usually overcharge to induce plea bargaining, or to have a chance to escape incarceration through a plea.

It is practically impossible to overturn a conviction based on a plea bargain on appeal. 

Pleas are deemed by appellate courts as consensual, judges take precautions to advise criminal defendants of what rights they are waiving and obtain those waivers from criminal defendants in writing, with prior advice of counsel, any wrongful-conviction issues are thus deemed waived, and the conviction is iron-clad.

If under such circumstances the convicted person goes to federal court and tries to sue the prosecutor under the very same scenario as resulted in no immunity for prosecutor in Morse v Fusto, it results in a dismissal under the so-called Rooker-Feldman doctrine where the court does not even consider the merits of the case.

So, event though a wrongful conviction has a more lasting effect upon the criminal defendant, his family, the country, the taxpayers and the perception by the public of lack of integrity of the court system, these cases of wrongful convictions will not be covered by Morse v Fusto.

The remedy?

I see two remedies.

1) legislative abolishment of prosecutorial immunity, and if legislatures refuse to do so, then an amendment of state constitutions and, possibly, the federal constitution, canceling all immunities to public officials for malicious and corrupt acts in office and for violation of constitutional rights of citizens;

2) ratification by Congress of the International Covenant for Political and Civil Rights, so that Americans acquire rights that people from other nations already enjoyed for years and decades - the right to sue their country in the court of an international human rights court.  

Once prosecutors realize that they are not immune from lawsuits for money damages out of their own pockets for fabrication of evidence and wrongful convictions, such fabrication will drop immediately.  People tend to react to being hit in their own pockets.  

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