"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.

Friday, February 12, 2016

Mainstream analysis of prosecutorial misconduct - still keeping their heads in the sand as to the solution

In 2013 ProPublica ran a series of articles that prosecutorial misconduct is not addressed in New York as a matter of policy.

In 2013 the famous (and notorious) judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit stated that prosecutorial misconduct happens on the scale of an "epidemic".

In 2014-2015 New York Senator DeFrancisco was pushing for creation of a separate Commission for prosecutorial misconduct (the bill is still in the works), and the New York District Attorney's Association "descended upon the Senate as paratroopers" to try to block the bills, asserting that the current disciplinary system - which does not prosecute prosecutors for misconduct - is just fine (that is reflected in the testimony of the co-founder of "It Can Happen to You" at the August 4, 2015 public hearing in Buffalo, NY before the NYS Statewide Commission for Attorney Discipline).

On February 11, 2016, The Huffpost Politics has posted an article about prosecutorial misconduct.

It said all the right words, provided the scanty statistics of prosecutorial discipline, criminal convictions and jail time for prosecutorial misconduct.

Disbarment of a North Carolina prosecutor Mike Nifong in 2007 for withholding exculpatory evidence and wrongfully prosecuting RICH white boys on a false accusation.  

I do not say that rich white boys are not entitled to equal protection of laws, I am saying that unless that case was about rich white boys, there would have been no scandal, Nifong would have kept his law license and the defendants would have gone to prison and had their lives ruined.

Mike Nifong was licensed since 1978 and was disbarred after 39 years in office.

Does any reasonable person have a doubt that what he did at the 38th year of his career was something out of the ordinary and that he did not do before?

Here is the disbarment decision of the North Carolina Disciplinary Board about Mike Nifong in its entirety.

Mike Nifong was disbarred, among other things, because he refused to recognize that he did anything wrong by withholding DNA evidence in the case.  

The final paragraph of the decision on disbarment that I provided below (I encourage the readers to read the entire decision that I interlinked above) mentions multiple violations.

Let's look at the summary analysis of aggravating vs mitigating factors in the decision.

Aggravating factors:

Mitigating factors:

But, of course - the mitigating factors were ABSENCE OF PRIOR DISCIPLINE and GOOD REPUTATION - because of the lack of prior discipline.

So, for 38 years an attorney was practicing law, has good reputation and no prior discipline, and then suddenly, out of the blue, in the 38th year of his career he starts displaying a PATTERN of dishonesty, attempts to promote his career by withholding DNA evidence in a high-publicity case racially divisive case and refuses to recognize that he did anything wrong.

Once again, is their any doubt in anybody's mind that there should have been MORE investigation in prior cases prosecuted by Mike Nifong to verify the true extent of his misconduct and to exonerate possible other victims of that misconduct who were not as rich and powerful as parents of Duke Lacrosse defendants and are doing time in prisons?

Actually, Mike Nifong was engaged in misconduct since at least 1995, as the 2014 reversal of a double-murder conviction showed.

And since at least 1995 the public was exposed to his shenannigans, while he was disbarred only in 2007.  How many wrongful convictions did he drum up over those 12 years? 

We know the phrase that has become trite: "justice delayed is justice denied".

For Duke Lacrosse defendants, due to the influence of their parents, justice came quickly.  They were able to pick up their lives, graduate from college and work in professions in which they would not have been permitted to work with felony records

For majority of people exonerated after wrongful convictions, the picture is not that rosy.

It is the picture of health ruined by the many years of humiliation while in prison,  often by the anxiety of the death row, by separation from the family, lack of family life, lack of profession, money, housing, anything that makes life worth living.

For example, in 2014 the 1995 conviction of Darryl Howard for murder was overturned, also because of Mike Nifong's misconduct.

Yet, nobody can give back to Mr. Howard 19 years of his life spent in prison.

Mr. Howard was prosecuted and convicted by Nifong for the murders of a woman and her 13-year old daughter, where the victims were also sexually assaulted.

"In post-conviction, Howard’s attorneys discovered a police memo describing a tip indicating that the murders were the work of a gang called the New York Boys.   The tip seemed particularly reliable because it referred to the fact that the women had been raped, a piece of information that wasn’t public.

The memo was found in both the police file and the file of District Attorney Mike Nifong.  But there’s no evidence it was ever turned over to the defense.  When DNA testing of sperm found in the daughter excluded Howard, Nifong proceeded with the case as if the sexual assaults weren’t part of the crime."

So, a HEINOUS crime was committed - murders AND RAPES of a 13-year-old child and a woman.  A black child and a black woman.

What did the white North Carolina prosecutor Mike Nifong do, having a memo in his file that the woman and the child were gang-raped?

He maligned the child's memory by denying and not prosecuting the rape at all, because that way it was easier to frame an innocent black man for two murders that he did not commit:

"Nifong and Dowdy instead speculated that the 13-year-old daughter hadn’t been raped, but instead had been sexually active within 24 hours of her murder with a boyfriend that they never produced.  Years later, Nifong would attempt to prosecute innocent men for a rape that never happened. Here, he prosecuted a likely innocent man by pretending two rapes never happened."

To portray vicious ANAL rape of a child as the child's own promiscuity? As having "consensual ANAL sex" before her death?

What do they say about a special place in hell for people like Mike Nifong? 

It was in 1995.

Even though his conviction has been reversed in 2014, based on the application of the Innocence Project, Darryl Howard still remains in prison, and that is the "legacy" of Mike Nifong.

Here is an account of what Darryl Howard missed in his life while in prison, wrongfully convicted of two murders, one of a child, because of prosecutorial misconduct.

But, if Darryl Howard and Duke Lacrosse defendants were to sue Mike Nifong for the DOCUMENTED MISCONDUCT, the lawsuit will be (or already was) dismissed - for absolute prosecutorial immunity.  

Of course, to give prosecutorial immunity was a matter of PUBLIC POLICY.  

Of course, matters of public policy are LEGISLATIVE.  Of course, U.S. Congress never put prosecutorial immunity in the statute, the Civil Rights Act.  

Of course, it was invented by courts - because most judges come from prosecutor's offices, and are likely engaged in the very same conduct as stepping stones of their careers.  

But, of course, the U.S. Congress is asleep at the wheel FOR 40 years since the concept of prosecutorial immunity was illegally introduced by the U.S. Supreme Court and DOES NOTHING to legislatively abolish it.

Prosecutors like Mike Nifong are NOT "honorable" people.  It is very clear from Nifong's actions. 

Here is how Mike Nifong's career reportedly developed:

"After a year as a per diem assistant DA with the Durham County DA's office, he was hired on a full-time basis in 1979.  He eventually worked his way up to chief assistant.  After District Attorney Jim Hardin was appointed to a Superior Court vacancy in 2005, Governor Mike Easley appointed Nifong to fill out the remainder of Hardin's term.   Nifong was sworn in on April 27, 2005."

So, Nifong was appointed District Attorney in 2005 - based on his record that included the wrongful conviction of Darryl Howard - and immediately implemented the same tactics in 2006 in the Duke Lacrosse case.  Withheld evidence.  Only this time he did it to the "wrong kind" of defendants - children of rich and influential white people.  And it backfired.

It is beyond any doubt that the conviction of Darryl Howard for two sexual assaults and two murders, one of a child - wrongful convictions both, based on withholding of evidence to the defense - helped advance Mike Nifong's career.

It would be only fair to require Mike Nifong to return to the taxpayers the money he was paid since 1995 and strip him of his pension and benefits.

Was he?

I highly doubt it.

It would be only fair to put Mike Nifong in jail for fraud and fraud upon the court based on his misconduct in at least these two cases.

Was he?

Wrongful convictions should be PREVENTED.  Sometimes, exonerations are too little too late to restore what was taken from people by those wrongful convictions.

And, discipline of the prosecutor for attempting such a wrongful conviction in Duke Lacrosse team is totally inadequate.  Disbarment - yes.  

Conviction - no.

Having to return and forfeit salary, pension and benefit received at the time of misconduct - no.

And, "the good news today is that Howard will at the very least get a new trial. The bad news is that any systematic effort to look for more Howards seems a lot less likely now than it was two months ago. And even then, it wasn’t very likely."

Moreover, where money is paid - of course, without disclosure to the defense or defendants - to informants for testimony at trial,  where prosecutorial immunity remains the rule (illegal, but vigorously enforced by courts), where prosecutors are not SUED for PUNITIVE MONEY DAMAGES, where their financial livelihoods, assets, cars, homes, are not exposed to liability, where they are not required to return what taxpayers paid them to do their jobs, not to engage in misconduct - we will have a lot more of wrongful convictions coming.

That is one prosecutorial misconduct case discussed by Huffpost Politics on February 11, 2016.

I wrote about one other - the disbarment of the Texas prosecutor who orchestrated a wrongful conviction and death sentence - where it took the Texas bar 10 years to disbar the prosecutor AFTER the wrongful conviction as overturned.

Similarly with Nifong, I did not find any information that the prosecutor was stripped of his pension and required to return salary and benefits paid over the period of time when he was engaged in misconduct.

Ken Anderson, a prosecutor from the same Texas who orchestrated a wrongful conviction of an innocent man for murder was disbarred, and spent a whopping 10 days in jail.

Nifong reportedly spent 24 hours in jail.

That's it.

They kept their ill-gained salaries, benefits, pensions and assets bought with that ill-gained money.  The taxpayers' money paid to them TO DO THEIR JOBS, not to put innocent people behind bars.

Remember Mike Nifong?



By putting an innocent man in jail for that murder and by hiding the evidence that the child was raped, the REAL CHILD RAPIST or RAPISTS REMAINED FREE.  

For 21 years.

How many more victims did they have since then?

When sill this society realize that prosecutorial misconduct must be curtailed quickly, resolutely, aggressively, mercilessly?  NOW?

When will this society realize that the judicial system WILL NOT HELP in this reform, because judges ARE FORMER PROSECUTORS, nearly all of them?

When will this society realize that prosecutorial immunity is at the ROOT OF PROSECUTORIAL MISCONDUCT and must be legislatively abolished and prohibited, if we do not want more wrongful convictions and more child rapists go free because of such wrongful convictions?

Now look at the last two paragraphs of the Huffpost Politics article on prosecutorial misconduct:

[Prosecutors] are politically powerful people who do a tough job under arduous circumstances,” he said. “I think lawyers often give them the benefit of the doubt. This is a huge problem. We must hold them accountable.”

To that end, Sebesta's disbarment is at least a step in the right direction. But it remains an outlier to the broader trend.   To further curb bad behavior, stricter rules must be implemented to crack down on the prosecutors who engage in misconduct. And those rules must be fortified with the promise of stiff and certain punishment for anyone who would undermine the principle of justice in pursuit of an unjust conviction."


Who is going to implement them?


Against prosecutors who will become judges?

While knowing that the disciplinary lawyers' own licenses are regulated by judges who are themselves former prosecutors?

There are NO SOLUTIONS offered by the "experts".  "Stricter rules" without a mechanism of enforcement of those rules BY THE PUBLIC means nothing.

This is where the concept of common law grand juries would be good - because the current situation where prosecutors are allowed decisions whether to turn other prosecutors into the grand juries for prosecutorial misconduct obviously result in non-prosecution of prosecutors or in having them escape jail time and tough sentences.

There should be legislation in place of the "eye for an eye" type.

If a prosecutor orchestrated a wrongful conviction for life - he must be himself sentenced for life.

If he orchestrated wrongfully sending a person to the death row - he should be sent to the death row himself.

And lawsuits for INTENTIONAL MISCONDUCT should be allowed, with actual and punitive damages against prosecutors.

Those are SPECIFIC "rules" that need to be implemented.  Talking in a roundabout way about "stricter rules" without nailing the problem and offering specific solutions will not change anything.




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