Saturday, April 9, 2011
Chanticleer sings Herbert Howells' "Here is the Little Door"
This is stunningly beautiful. Here is the text, which the great Herbert Howells put to SATB in 1918:
Here is the little door.
Lift up the latch; O lift!
We need not wander more,
but enter with our gift.
A gift of finest Gold,
Gold that was never bought nor sold;
Myrrh to be strewn about his bed;
Incense in clouds about his head;
all for the Child who stirs not in his sleep,
but Holy slumber holds with ass and sheep.
Bend low about his bed: for each he has a gift!
See how his eyes awake--lift up your hands! O lift!
For Gold he gives a keen-edged sword (defend with it thy little Lord)!
For incense, smoke of battle red.
Myrrh for the honoured happy dead.
Gifts for his children, terrible and sweet,
Touched by such tiny hands and oh! such tiny feet.
The text was composed by Frances Chesterton, wife of G.K. Chesterton.
Thursday, April 7, 2011
A truly heroic public defender
I received this email recently, and am publishing it with some changes, as suggested by the author. It is the story of a public defender who tore up a prosecutor's false accusation case. This attorney now is in private practice.
In May of 1997 my ex-wife made a false allegation of child sexual abuse to Child Protective Services. I went through nine months of hell. I was earning $28,000 a year at the time so my only choice for legal counsel was to accept the services of a public defender. The PD, a fairly young woman named Camille Neider was full of integrity and very hard-working. In January of 1998 she came to the preliminary hearing with two three-inch-thick binders full of documents she had subpoened. She had key passages highlighted and had put tabs on the key pages. She was calm and brilliant. After a few minutes it became apparent that this woman was working a miracle. She questioned my ex-wife and two of my sons. At some points it seemed the judge was about to fall off his chair in astonishment. After about an hour and 20 minutes (most of the time being taken up by Ms. Neider), the judge said he wanted to see the prosecutor and the defender in his chamber. They emerged about 20 minutes later. The judge announced he was taking the case under advisement and would let all parties know within 30 days whether or not the court would proceed to a full hearing.
Then Ms. Neider took me into a separate room where I met with her and her legal intern. She said, "Now I'm going to tell you what really went on in the judge's chamber." She said that the prosecutor said, "There's no way in hell I'm going to prosecute this case." The judge replied, "Don't worry, I wouldn't let you...Like this woman is going to convince a jury that her son isn't lying?! I don't think so."
Ms. Neider told me that they had to come up with a diversion. I asked what she meant. She said the judge had to help the prosecutor "cover his ass." “How so?” I asked. She explained that in these days of "so much hysteria" over child abuse allegations it could destroy the prosecutor's career if he comes to be viewed as not being willing to prosecute a case of alleged child abuse.
Two days later the prosecutor dropped the charges on his own (without a diversion having been worked out). The next day the judge dismissed the case entirely.
I started the process of having my record expunged with all the relevant agencies (city police, county sheriff's office, state office of criminal investigations (whatever it's called), and the FBI). I also called the Office of Administrative hearings and told them I wanted CPS's "substantiation" expunged. The head guy there told me it was too late...I had missed some deadline. I said that the case had just been dismissed a few days ago and asked if he would have allowed me to appeal the substantiation while the case was still pending. He said, "Good point" and eventually scheduled a hearing with the agent from CPS who had substantiated against me, and himself, and me.
That hearing took a full morning in May or June of 1998. In that meeting the CPS agent admitted that she had substantiated against me in violation of state regulations (she had substantiated after speaking with only one person: my ex-wife). The administrator asked her why she did that. Her answer: pressure from the police. (And yes, I had foolishly trusted the police and met with an officer without having a lawyer present...and boy do they twist things!) In November 1998 I got a letter from the Office of Administrative Hearings. They had completed their investigation and ordered CPS to unsubstantiate the prior substantiation (from May 1997) (there is no mechanism in our state law to expunge a substantiation). In May of 1999 I got a letter from CPS saying that they had changed the original report from "substantiated" to "unsubstantiated".
I'm leaving out many, many details of the severe anguish the false allegations caused me. Unfortunately the damage to my six children was also very real, especially to two of them. My ex-wife had put these two (who were also my most troubled son and daughter) in counseling with a "therapist" who believed in the recovery of repressed memories. (In one of the subpoened documents containing the therapist's notes to himself he stated that he "supported my son" by telling him that all his troubles came from "the fact" that his father had molested him! Of course, he would have gotten that idea from my ex.) In the hearing my son answered Ms. Neider as noted here.
Ms. Neider: How certain were you at the time the report was first made, that your father had molested you?
Son: Not very certain [or something to that effect]
Ms. Neider: How certain are you NOW that your father molested you?
Son: Completely certain [or something to that effect]
[I still have a complete 160-page transcript from that hearing.]
My son and I eventually reconciled—though he was troubled for years. Then it seemed he was making good progress from the time he was 19 (2000) until the day he committed suicide (early January 2009). I believe that a child who thinks he or she was molested suffers just as much psychological damage as a child who was molested.
My troubled daughter is now 25. She has just taken the initiative during the last 3 weeks to reconcile with me. She didn't know me well due to the fact that my wife left me when my daughter was 7 years old. To keep peace with her mother my daughter was more or less required to hate me. One year ago I feared she'd die prematurely due to the heavy burdens that she carried. She's made some miraculous changes in her life since then—including marrying a man who seems to truly love her. She and her husband have moved to another state and are therefore also away from the influence of her, dare I say, vindictive mother.
Of course, there's a lot more to this story. I can't say how grateful that I am for the good people who helped me (and my children) along the way. I would say that my state’s judicial system is as screwed up as that of any other state, but I recognize that I was fortunate enough (blessed enough) to have dealt with some very honest, intelligent, dedicated, and kind-hearted professionals who made the difference between justice having been met (for a large part—though not entirely, of course) and my possibly having gone to prison for 15 years for a crime that I didn't do and that in fact never happened at all.
Your work is important in alerting Americans to the plight of corrupt laws and, worse than that, corrupt officials. I do not doubt that many innocent persons are unjustly imprisoned. What amazing stories will come out and what fitting punishments and rewards will be handed out come judgment day!
In May of 1997 my ex-wife made a false allegation of child sexual abuse to Child Protective Services. I went through nine months of hell. I was earning $28,000 a year at the time so my only choice for legal counsel was to accept the services of a public defender. The PD, a fairly young woman named Camille Neider was full of integrity and very hard-working. In January of 1998 she came to the preliminary hearing with two three-inch-thick binders full of documents she had subpoened. She had key passages highlighted and had put tabs on the key pages. She was calm and brilliant. After a few minutes it became apparent that this woman was working a miracle. She questioned my ex-wife and two of my sons. At some points it seemed the judge was about to fall off his chair in astonishment. After about an hour and 20 minutes (most of the time being taken up by Ms. Neider), the judge said he wanted to see the prosecutor and the defender in his chamber. They emerged about 20 minutes later. The judge announced he was taking the case under advisement and would let all parties know within 30 days whether or not the court would proceed to a full hearing.
Then Ms. Neider took me into a separate room where I met with her and her legal intern. She said, "Now I'm going to tell you what really went on in the judge's chamber." She said that the prosecutor said, "There's no way in hell I'm going to prosecute this case." The judge replied, "Don't worry, I wouldn't let you...Like this woman is going to convince a jury that her son isn't lying?! I don't think so."
Ms. Neider told me that they had to come up with a diversion. I asked what she meant. She said the judge had to help the prosecutor "cover his ass." “How so?” I asked. She explained that in these days of "so much hysteria" over child abuse allegations it could destroy the prosecutor's career if he comes to be viewed as not being willing to prosecute a case of alleged child abuse.
Two days later the prosecutor dropped the charges on his own (without a diversion having been worked out). The next day the judge dismissed the case entirely.
I started the process of having my record expunged with all the relevant agencies (city police, county sheriff's office, state office of criminal investigations (whatever it's called), and the FBI). I also called the Office of Administrative hearings and told them I wanted CPS's "substantiation" expunged. The head guy there told me it was too late...I had missed some deadline. I said that the case had just been dismissed a few days ago and asked if he would have allowed me to appeal the substantiation while the case was still pending. He said, "Good point" and eventually scheduled a hearing with the agent from CPS who had substantiated against me, and himself, and me.
That hearing took a full morning in May or June of 1998. In that meeting the CPS agent admitted that she had substantiated against me in violation of state regulations (she had substantiated after speaking with only one person: my ex-wife). The administrator asked her why she did that. Her answer: pressure from the police. (And yes, I had foolishly trusted the police and met with an officer without having a lawyer present...and boy do they twist things!) In November 1998 I got a letter from the Office of Administrative Hearings. They had completed their investigation and ordered CPS to unsubstantiate the prior substantiation (from May 1997) (there is no mechanism in our state law to expunge a substantiation). In May of 1999 I got a letter from CPS saying that they had changed the original report from "substantiated" to "unsubstantiated".
I'm leaving out many, many details of the severe anguish the false allegations caused me. Unfortunately the damage to my six children was also very real, especially to two of them. My ex-wife had put these two (who were also my most troubled son and daughter) in counseling with a "therapist" who believed in the recovery of repressed memories. (In one of the subpoened documents containing the therapist's notes to himself he stated that he "supported my son" by telling him that all his troubles came from "the fact" that his father had molested him! Of course, he would have gotten that idea from my ex.) In the hearing my son answered Ms. Neider as noted here.
Ms. Neider: How certain were you at the time the report was first made, that your father had molested you?
Son: Not very certain [or something to that effect]
Ms. Neider: How certain are you NOW that your father molested you?
Son: Completely certain [or something to that effect]
[I still have a complete 160-page transcript from that hearing.]
My son and I eventually reconciled—though he was troubled for years. Then it seemed he was making good progress from the time he was 19 (2000) until the day he committed suicide (early January 2009). I believe that a child who thinks he or she was molested suffers just as much psychological damage as a child who was molested.
My troubled daughter is now 25. She has just taken the initiative during the last 3 weeks to reconcile with me. She didn't know me well due to the fact that my wife left me when my daughter was 7 years old. To keep peace with her mother my daughter was more or less required to hate me. One year ago I feared she'd die prematurely due to the heavy burdens that she carried. She's made some miraculous changes in her life since then—including marrying a man who seems to truly love her. She and her husband have moved to another state and are therefore also away from the influence of her, dare I say, vindictive mother.
Of course, there's a lot more to this story. I can't say how grateful that I am for the good people who helped me (and my children) along the way. I would say that my state’s judicial system is as screwed up as that of any other state, but I recognize that I was fortunate enough (blessed enough) to have dealt with some very honest, intelligent, dedicated, and kind-hearted professionals who made the difference between justice having been met (for a large part—though not entirely, of course) and my possibly having gone to prison for 15 years for a crime that I didn't do and that in fact never happened at all.
Your work is important in alerting Americans to the plight of corrupt laws and, worse than that, corrupt officials. I do not doubt that many innocent persons are unjustly imprisoned. What amazing stories will come out and what fitting punishments and rewards will be handed out come judgment day!
Wednesday, April 6, 2011
This is important: Carola needs our help!
Carola Jacobson has been a rock in the defense of her son, and I am proud to be her friend. However, she is seriously ill with breast cancer and friends have established a website to help raise funds for her.
It is utterly outrageous that a woman is forced to spend all that she has for legal help in a case that is a farce and a lie. The "justice" system of Maricopa County, Arizona, has done everything it could to destroy her life and the lives of her children. Now it wants to destroy her health by continuing to place her under huge amounts of stress.
While we cannot force the authorities of Maricopa County to do what is right, at least we can give to help Carola get the cancer treatment she needs. So, if you have the opportunity, please give what you can!
It is utterly outrageous that a woman is forced to spend all that she has for legal help in a case that is a farce and a lie. The "justice" system of Maricopa County, Arizona, has done everything it could to destroy her life and the lives of her children. Now it wants to destroy her health by continuing to place her under huge amounts of stress.
While we cannot force the authorities of Maricopa County to do what is right, at least we can give to help Carola get the cancer treatment she needs. So, if you have the opportunity, please give what you can!
Tuesday, April 5, 2011
What if you are falsely accused? Part II: Choosing legal help
In the first part of this series, I pointed out that if the authorities falsely accuse you of a sex-related crime (or anything else), you should NEVER talk to the police. The police are not interested in finding out what happened; they are interested in finding a way to get you thrown into prison, whether or not you did anything wrong.
This post gives advice on choosing an attorney, which other than deciding not to talk to the police is the most important decision you will make. Many an innocent person has been railroaded into prison because of bad legal representation, and people who have been acquitted of these kinds of charges will tell you that their choice of attorney really mattered.
The vast majority of people who are falsely accused never have been in trouble with the law before and, thus, are not exactly on a first-name basis with criminal defense attorneys. They often take the first name out of the phone book, or get the name of an attorney from someone else, or a website in which the lawyer promises to be the Second Coming of F. Lee Bailey or Johnny Cochran.
I have been personally involved in four of these kinds of cases and each time the defendant has had to fire his or her original counsel, which means thousands of dollars thrown down the drain. I have seen attorneys attempt to sell out their clients, refuse to look at exculpatory material, and tell their clients to do nothing and let them do all the work. (And then they proceed to do the minimum amount of work until the defendant is in a huge hole.)
Believe me, it is MUCH better to have good counsel at the start, as opposed to having to fire the attorney mid-way through the case and then begin afresh with a new lawyer. So, how do you do it, and, more important, how do you afford it?
The first thing to remember is that your attorney needs to be someone who has at least some experience with these kinds of cases. As Tonya Craft has told me more than once, these cases are very different than any other kind of criminal charge. The public is much more likely to believe the charges, and the courts have been willing to accept "evidence" that is not evidence at all. Furthermore, as Tonya saw, more often than not, the judge may very well act like a member of the prosecution team. (I will say that "judge" brian outhouse's conduct during the trial was on the extreme side, but a lot of people who have been wrongfully convicted in these kinds of cases had trials in which the judges were hostile to them throughout the proceedings.)
The second thing is that the attorney you choose needs to be amenable to the belief that you are innocent of the charges. Criminal defense attorneys usually represent guilty people, and like everyone else, they become jaded over time dealing with liars, crooks, thieves, rapists, and murderers. Many times, they don't like their clients, would not want to meet them in a dark alley, and believe that they are guilty as sin, but still do their professional duty and represent them as they should.
It is very rare that a criminal defense attorney has an innocent client and all-too-often, that lawyer fails to recognize his or her client's innocence and immediately tries to find a way to plead out the accused. If you are innocent and want to fight the charges, and your attorney is suggesting that you plead out, fire that attorney immediately. Don't wait for him or her to have a change of heart. An attorney who will want to plead you out is an attorney who does not care about you, your innocence, or doing what is right.
No, if you want to prevail, you have to get a lawyer who believes in you and your innocence. You need to get a lawyer who will take a hard look at exculpatory evidence, and who will be open to receiving material from you. For example, Tonya had very good attorneys, but she also played a major role in her defense, poring over material, putting together timelines, and unearthing exculpatory material. You have to be willing to do the same, and if your attorney wants you to sit back and be passive, be active instead and say, "You're fired."
I have seen one case in which the attorney lied to his client and read NO material on the case before the bond hearing and then had no argument at all, which meant the client remained in jail. There is another case in which the attorney clearly did not know anything about how child molestation cases worked and never even raised a question about some very untenable claims the prosecution was making. And on and on.
Believe me, it does not take much for a lawyer to sell out his or her client, pocket the money, while you spend the rest of your life in prison for something that never happened. This sad event happens more time than you ever can imagine, and the attorney will not shed a tear as you are dragged away to hell on earth.
So, how do you choose an attorney? The first thing you have to do is to find out whether or not he or she is familiar with cases such as yours involving false accusation. If so, then you need to find out if the counsel is willing to fight for you. Keep in mind that you are employing the attorney, not the other way around.
Second, see if there is a personal connect. Can you work with this person? Does this attorney have references that you can call? Has he or she been able to get other falsely-accused people acquitted?
Third, do NOT hire someone who is part of the "courthouse crowd," especially of the courthouse where you will be tried. Tonya's first attorney, a local lawyer in Catoosa County, immediately tried to get her to plead out. There was no way that he was going to be willing to antagonize Chris Arnt, and he was all-too-happy to sell Tonya down the river.
A local member of the "good ole boy" crowd will not fight for you, for that means taking on the local "justice" apparatus and doing battle with his drinking and lunch buddies. That will not work.
There is a hazard in hiring someone from out-of-town, and that is the fact that the judge and others might be hostile to him or her simply because of the out-of-town label. During Tonya's trial, "judge" brian outhouse was openly hostile to her counsel, and both Len "The Man" Gregor and Chris "Facebook-Cruisemaster" Arnt many times during the proceedings reminded jurors that they counsel was not local, which I guess they thought would inflame the jurors to vote "guilty." (It turns out that the jurors were not the in-bred hicks that Arnt, Gregor, and outhouse thought they would be. The only in-bred hicks in the building were those employed by Catoosa County and the State of Georgia.)
Then there is the cost. You have to remember this simple fact when you are falsely accused: your life as you have known it is over. Over. Forget your career, your job, your friends, your church, and maybe even your family. People who shook your hand now will turn away; you are likely to be fired, or at least suspended from your job, and even if you are acquitted, a sizable group of people will claim that you "got off on a technicality" and really are a child molester or a rapist. (In modern America, unfortunately, "innocence" has become nothing more than a "legal technicality.")
Most of us don't have $50-$60 thousand of spare change lying around, so that is going to mean you will have to be created in your spending. One of the reasons that prosecutors love false accusation cases is that the defendants generally are not wealthy, yet are forced to pay for the legal counsel while the taxpayers (including you) finance the prosecution. Just this financial disconnect alone is a huge reason that thousands of people are wrongfully-convicted in American courts today.
This might mean a second mortgage, selling your house and anything else you own, cashing in on your pension, or whatever it takes. If you cannot afford an attorney, that means that you will be assigned a public defender, who is NOT going to be competent if you go to trial. Furthermore, the public defender will be a product of the "courthouse crowd," which means it is likely he or she will ignore exculpatory information and offer you up as a sacrifice to the prosecutors.
I have a friend who was convicted in federal court in what truly was a smarmy action by the feds. First, the feds seized her property, depriving her of being able to pay a lawyer, with the government assigning her counsel that demanded she plead out. My friend, who believed she was innocent, insisted on going to trial, so her court-appointed lawyers undermined her, refused to present exculpatory evidence during the trial, and let a jerk of a prosecutor win a conviction.
[Note]: Someone has commented on the board that where he or she works, the public defenders are more aggressive in their cases than are the regularly-paid attorneys, and that my earlier statement then negates the truthfulness everything I ever have posted. First, it is not my point to defame PDs. Many of them are overworked, underpaid, and face serious odds.
Second, I have listed the experiences I have witnessed, which means that I have not seen personally a situation in which public defenders are effective in dealing with the prosecution. The problem is NOT that public defenders are callous or craven, per se, but rather that the deck is stacked against them. They often have to dig into their own funds, as the payment they receive from the state is woeful, and they face constraints that prosecutors don't face.
Third, if they really go after the prosecution's case aggressively, they are liable to be victims of prosecutorial retaliation. That is the cold, hard reality of the world of the public defender, and I think where I made my error was in making it seem as though the PD always INTENDS to sell out the client.
The PD has a difficult job. In cases where I have been involved, at least on the periphery, the PD has wanted to plead out the defendant. One case especially bothered me, as the attorneys had in their possession a document that clearly contradicted what one of the prosecution's star witnesses was claiming. My friend, an attorney herself, showed that document to her public defenders, and they blew it off. During the trial, they literally presented NOTHING to contradict the prosecution's case, even though they had available material. Not surprisingly, she was convicted.
True, one case does not determine a trend. It is my contention, however, that in the kinds of cases we see here, unless a PD has experience with wrongful-accusation charges, it is better to have counsel that does have experience and that is likely to hold you really are innocent.
Again, let me emphasize that I am not dissing PDs or their work. They labor against constraints that are terribly unfair and that make theirs an uphill battle. That is the reality of their situation.[End Note]
You want to get a lawyer who believes you are innocent and understands the nature of these kinds of cases. Anything less than that will land you in prison for the rest of your life.
This post gives advice on choosing an attorney, which other than deciding not to talk to the police is the most important decision you will make. Many an innocent person has been railroaded into prison because of bad legal representation, and people who have been acquitted of these kinds of charges will tell you that their choice of attorney really mattered.
The vast majority of people who are falsely accused never have been in trouble with the law before and, thus, are not exactly on a first-name basis with criminal defense attorneys. They often take the first name out of the phone book, or get the name of an attorney from someone else, or a website in which the lawyer promises to be the Second Coming of F. Lee Bailey or Johnny Cochran.
I have been personally involved in four of these kinds of cases and each time the defendant has had to fire his or her original counsel, which means thousands of dollars thrown down the drain. I have seen attorneys attempt to sell out their clients, refuse to look at exculpatory material, and tell their clients to do nothing and let them do all the work. (And then they proceed to do the minimum amount of work until the defendant is in a huge hole.)
Believe me, it is MUCH better to have good counsel at the start, as opposed to having to fire the attorney mid-way through the case and then begin afresh with a new lawyer. So, how do you do it, and, more important, how do you afford it?
The first thing to remember is that your attorney needs to be someone who has at least some experience with these kinds of cases. As Tonya Craft has told me more than once, these cases are very different than any other kind of criminal charge. The public is much more likely to believe the charges, and the courts have been willing to accept "evidence" that is not evidence at all. Furthermore, as Tonya saw, more often than not, the judge may very well act like a member of the prosecution team. (I will say that "judge" brian outhouse's conduct during the trial was on the extreme side, but a lot of people who have been wrongfully convicted in these kinds of cases had trials in which the judges were hostile to them throughout the proceedings.)
The second thing is that the attorney you choose needs to be amenable to the belief that you are innocent of the charges. Criminal defense attorneys usually represent guilty people, and like everyone else, they become jaded over time dealing with liars, crooks, thieves, rapists, and murderers. Many times, they don't like their clients, would not want to meet them in a dark alley, and believe that they are guilty as sin, but still do their professional duty and represent them as they should.
It is very rare that a criminal defense attorney has an innocent client and all-too-often, that lawyer fails to recognize his or her client's innocence and immediately tries to find a way to plead out the accused. If you are innocent and want to fight the charges, and your attorney is suggesting that you plead out, fire that attorney immediately. Don't wait for him or her to have a change of heart. An attorney who will want to plead you out is an attorney who does not care about you, your innocence, or doing what is right.
No, if you want to prevail, you have to get a lawyer who believes in you and your innocence. You need to get a lawyer who will take a hard look at exculpatory evidence, and who will be open to receiving material from you. For example, Tonya had very good attorneys, but she also played a major role in her defense, poring over material, putting together timelines, and unearthing exculpatory material. You have to be willing to do the same, and if your attorney wants you to sit back and be passive, be active instead and say, "You're fired."
I have seen one case in which the attorney lied to his client and read NO material on the case before the bond hearing and then had no argument at all, which meant the client remained in jail. There is another case in which the attorney clearly did not know anything about how child molestation cases worked and never even raised a question about some very untenable claims the prosecution was making. And on and on.
Believe me, it does not take much for a lawyer to sell out his or her client, pocket the money, while you spend the rest of your life in prison for something that never happened. This sad event happens more time than you ever can imagine, and the attorney will not shed a tear as you are dragged away to hell on earth.
So, how do you choose an attorney? The first thing you have to do is to find out whether or not he or she is familiar with cases such as yours involving false accusation. If so, then you need to find out if the counsel is willing to fight for you. Keep in mind that you are employing the attorney, not the other way around.
Second, see if there is a personal connect. Can you work with this person? Does this attorney have references that you can call? Has he or she been able to get other falsely-accused people acquitted?
Third, do NOT hire someone who is part of the "courthouse crowd," especially of the courthouse where you will be tried. Tonya's first attorney, a local lawyer in Catoosa County, immediately tried to get her to plead out. There was no way that he was going to be willing to antagonize Chris Arnt, and he was all-too-happy to sell Tonya down the river.
A local member of the "good ole boy" crowd will not fight for you, for that means taking on the local "justice" apparatus and doing battle with his drinking and lunch buddies. That will not work.
There is a hazard in hiring someone from out-of-town, and that is the fact that the judge and others might be hostile to him or her simply because of the out-of-town label. During Tonya's trial, "judge" brian outhouse was openly hostile to her counsel, and both Len "The Man" Gregor and Chris "Facebook-Cruisemaster" Arnt many times during the proceedings reminded jurors that they counsel was not local, which I guess they thought would inflame the jurors to vote "guilty." (It turns out that the jurors were not the in-bred hicks that Arnt, Gregor, and outhouse thought they would be. The only in-bred hicks in the building were those employed by Catoosa County and the State of Georgia.)
Then there is the cost. You have to remember this simple fact when you are falsely accused: your life as you have known it is over. Over. Forget your career, your job, your friends, your church, and maybe even your family. People who shook your hand now will turn away; you are likely to be fired, or at least suspended from your job, and even if you are acquitted, a sizable group of people will claim that you "got off on a technicality" and really are a child molester or a rapist. (In modern America, unfortunately, "innocence" has become nothing more than a "legal technicality.")
Most of us don't have $50-$60 thousand of spare change lying around, so that is going to mean you will have to be created in your spending. One of the reasons that prosecutors love false accusation cases is that the defendants generally are not wealthy, yet are forced to pay for the legal counsel while the taxpayers (including you) finance the prosecution. Just this financial disconnect alone is a huge reason that thousands of people are wrongfully-convicted in American courts today.
This might mean a second mortgage, selling your house and anything else you own, cashing in on your pension, or whatever it takes. If you cannot afford an attorney, that means that you will be assigned a public defender, who is NOT going to be competent if you go to trial. Furthermore, the public defender will be a product of the "courthouse crowd," which means it is likely he or she will ignore exculpatory information and offer you up as a sacrifice to the prosecutors.
I have a friend who was convicted in federal court in what truly was a smarmy action by the feds. First, the feds seized her property, depriving her of being able to pay a lawyer, with the government assigning her counsel that demanded she plead out. My friend, who believed she was innocent, insisted on going to trial, so her court-appointed lawyers undermined her, refused to present exculpatory evidence during the trial, and let a jerk of a prosecutor win a conviction.
[Note]: Someone has commented on the board that where he or she works, the public defenders are more aggressive in their cases than are the regularly-paid attorneys, and that my earlier statement then negates the truthfulness everything I ever have posted. First, it is not my point to defame PDs. Many of them are overworked, underpaid, and face serious odds.
Second, I have listed the experiences I have witnessed, which means that I have not seen personally a situation in which public defenders are effective in dealing with the prosecution. The problem is NOT that public defenders are callous or craven, per se, but rather that the deck is stacked against them. They often have to dig into their own funds, as the payment they receive from the state is woeful, and they face constraints that prosecutors don't face.
Third, if they really go after the prosecution's case aggressively, they are liable to be victims of prosecutorial retaliation. That is the cold, hard reality of the world of the public defender, and I think where I made my error was in making it seem as though the PD always INTENDS to sell out the client.
The PD has a difficult job. In cases where I have been involved, at least on the periphery, the PD has wanted to plead out the defendant. One case especially bothered me, as the attorneys had in their possession a document that clearly contradicted what one of the prosecution's star witnesses was claiming. My friend, an attorney herself, showed that document to her public defenders, and they blew it off. During the trial, they literally presented NOTHING to contradict the prosecution's case, even though they had available material. Not surprisingly, she was convicted.
True, one case does not determine a trend. It is my contention, however, that in the kinds of cases we see here, unless a PD has experience with wrongful-accusation charges, it is better to have counsel that does have experience and that is likely to hold you really are innocent.
Again, let me emphasize that I am not dissing PDs or their work. They labor against constraints that are terribly unfair and that make theirs an uphill battle. That is the reality of their situation.[End Note]
You want to get a lawyer who believes you are innocent and understands the nature of these kinds of cases. Anything less than that will land you in prison for the rest of your life.
Saturday, April 2, 2011
The Jerry Sandusky Case: What are the appropriate questions?
With false accusations of sex-related crimes running rampant in our country, it often becomes difficult to ascertain what the truth might be when someone makes an accusation that might be credible -- or could be a lie. It becomes even more difficult when the person accused is well-known and admired.
The Patriot-News of Harrisburg, Pennsylvania, is reporting that a grand jury there is looking into allegations that Jerry Sandusky, the legendary assistant coach who worked with Joe Paterno at Penn State until retirement in 1999, sexually assaulted a 15-year-old boy. Here is what was said on the Huffington Post today:
Let me explain a parallel case, that being the charges against Michael Rasmussen. Like Sandusky, Michael has more than one person making accusations. However, as one looks closely at who is accusing Michael and the context of those accusations, one finds that there absolutely is no evidence except what three people are claiming.
Furthermore, as one examines EACH of the accusations, it is not hard to see that they are questionable, and when the case comes to trial, we will find that the prosecution's "slam dunk" witnesses are going to be stumbling over a lot of facts that will be put in front of them. As I see it, the fact that there are multiple accusers in the end will make the case even weaker as the defense exposes the contacts between them. For example, Apryl has claimed that she had not had any contact with Scott Monroe, another accuser.
However, it will not be difficult for the defense to establish that there was contact and planning between them. When that happens, the defense also will have demonstrated that Apryl committed a felony by making false statements and then lying on top of them. (Prosecutors already have told Apryl that this will be an easy case, and that she will only be on the stand for a short time. So, they have lied to her as well. This should be interesting.)
Likewise, there were multiple accusers in the Tonya Craft case, and they crashed and burned, especially when it became obvious that they had been coached, and when Sandra Lamb's daughter actually recited lines from the movies in which she acted. So, I cannot say that two accusers against Sandusky actually means anything.
I do find it interesting, however, that the police are doing what seems to be a careful investigation, unlike what we saw with Tonya Craft, the Jacobson child, Michael Rasmussen, and James Combs. In those cases, the police decided on the front end that the accused were guilty and that their job was to find a way to hammer square pegs of evidence into the round holes of truth.
It is obvious to me that the police are being careful because if they are seen trying to railroad someone as prominent as Jerry Sandusky, then they are going to be scrutinized in every other sex-assault case they have investigated. Likewise, prosecutors will come under the kind of scrutiny that the press and others rarely give them if they are seen to try to fabricate evidence against one of the most respected sports figures in Pennsylvania.
Now, I cannot say in this post that Jerry Sandusky is guilty of anything. In the accusation from more than a decade ago, police tried to trick him into making a self-incriminating statement, and their scheme fell apart. (That is why I say that just because someone accused him of sexual assault more than 10 years ago might very well mean absolutely nothing.)
Nor can I say I believe the guy is innocent. I don't know, and right now I have no idea about what the investigation is doing, what people are saying, and if there is evidence beyond the "he said, he said" nature of this case. If a number of other young men come forward and make similar claims -- claims, I might add, that could be demonstrated to be credible -- then things might become much more difficult for Sandusky.
Here is the problem in a nutshell: the law permits sexual-assault-molestation cases to go to trial simply on the word of an accuser. No physical evidence is necessary. (I don't know the details of Pennsylvania law, but when the federal government became involved in this area through the Mondale Act, one of the provisions was that states change their law to eliminate the need for physical evidence or anything else besides an accuser's words. I suspect that Pennsylvania has fallen into line.)
I'm extremely wary of cases that are built upon someone's accusation, and especially someone who would stand to gain money (should a jury convict) through a lawsuit. I would be curious to know if any of the accusing parties have approached Sandusky or the organization he represents to demand money. Maybe that has not happened, but in other cases, we do find money to be a powerful motivator.
I know nothing about Sandusky's attorney, Joseph Amendola. He might be an excellent attorney, someone who is well-versed in these kinds of cases, or he might be a friend who has handled other matters for Sandusky and has been called upon for this case as well. The important thing here is that if Amendola is NOT experienced in dealing with sexual assault accusation cases, or if he is not familiar with the reasons that such cases are very, very different from other kinds of criminal cases, then Sandusky could be in serious trouble, even if he is innocent.
Jerry Sandusky's fame and reputation have served as a check upon the authorities in Pennsylvania to throw together a slipshod case in hopes of scoring a quick and easy victory. Nonetheless, here is a man whose reputation forever is stained, and if he is innocent and the accusations false, may those who accused him be forced to pay dearly. If the accusers are telling the truth, then I would hope the law would deal properly with him. We shall see.
The Patriot-News of Harrisburg, Pennsylvania, is reporting that a grand jury there is looking into allegations that Jerry Sandusky, the legendary assistant coach who worked with Joe Paterno at Penn State until retirement in 1999, sexually assaulted a 15-year-old boy. Here is what was said on the Huffington Post today:
Jerry Sandusky, the former Penn State defensive coordinator known for his charitable work helping at-risk children, is being investigated by a state grand jury on allegations he indecently assaulted a teenage boy, a newspaper reported.The Patriot-News also reported this:
Sandusky has not been charged. A grand jury examines accusations to determine if evidence warrants filing charges.
A message left by The Associated Press at a number listed for Sandusky in State College was not immediately returned. His lawyer, Joseph Amendola, said in a statement that Sandusky maintained his innocence and was disappointed the newspaper published a story "prior to any determination by the Attorney General's Office that he did anything inappropriate at all."
"While Jerry has been aware of an ongoing investigation by the Attorney General's Office for many months dating back to 2009, he has steadfastly maintained his innocence throughout this ordeal," Amendola said.
The Patriot-News in Harrisburg reported Thursday that it spoke to five anonymous sources with knowledge of the case who say a grand jury has been meeting in Harrisburg for 18 months to hear allegations made by a 15-year-old boy in 2009.
The paper reported the teen told authorities that there was inappropriate contact over a four-year period.
Two months ago, state police at Rockview in Centre County began calling witnesses to a May 1998 report by Penn State University police detailing an earlier allegation of inappropriate contact against Sandusky by another boy.All of this sounds quite damning, yet as one who is familiar with how the police work in such cases, this information might provide real evidence that Sandusky is a child molester -- or it could be absolutely meaningless. Unfortunately, as I read some of the comments made by readers of the articles, it seems that they have seen absolute proof of his guilt.
According to several sources, that boy, who was 12 at the time, alleged he and Sandusky were showering in the football building on Penn State’s campus when the incident took place.
The boy’s mother told The Patriot-News she was specifically instructed by state police at Rockview not to speak with a reporter. Her name is being withheld by The Patriot-News to protect the identity of her son.
No charges were ever filed against Sandusky.
According to sources close to the investigation, the boy told police in 1998 that Sandusky had showered with him in a locker room of the Lasch Building — home to the football program — during a tour. The boy claimed Sandusky washed his body during the shower, sources said.
As part of the May 1998 investigation, police had the boy’s mother call Sandusky to her State College home and confront him while they hid in another room, according to sources.
Another boy, now an adult in the armed forces, was named as a witness in the 1998 Penn State police report and has been contacted by state police, his wife confirmed.
Let me explain a parallel case, that being the charges against Michael Rasmussen. Like Sandusky, Michael has more than one person making accusations. However, as one looks closely at who is accusing Michael and the context of those accusations, one finds that there absolutely is no evidence except what three people are claiming.
Furthermore, as one examines EACH of the accusations, it is not hard to see that they are questionable, and when the case comes to trial, we will find that the prosecution's "slam dunk" witnesses are going to be stumbling over a lot of facts that will be put in front of them. As I see it, the fact that there are multiple accusers in the end will make the case even weaker as the defense exposes the contacts between them. For example, Apryl has claimed that she had not had any contact with Scott Monroe, another accuser.
However, it will not be difficult for the defense to establish that there was contact and planning between them. When that happens, the defense also will have demonstrated that Apryl committed a felony by making false statements and then lying on top of them. (Prosecutors already have told Apryl that this will be an easy case, and that she will only be on the stand for a short time. So, they have lied to her as well. This should be interesting.)
Likewise, there were multiple accusers in the Tonya Craft case, and they crashed and burned, especially when it became obvious that they had been coached, and when Sandra Lamb's daughter actually recited lines from the movies in which she acted. So, I cannot say that two accusers against Sandusky actually means anything.
I do find it interesting, however, that the police are doing what seems to be a careful investigation, unlike what we saw with Tonya Craft, the Jacobson child, Michael Rasmussen, and James Combs. In those cases, the police decided on the front end that the accused were guilty and that their job was to find a way to hammer square pegs of evidence into the round holes of truth.
It is obvious to me that the police are being careful because if they are seen trying to railroad someone as prominent as Jerry Sandusky, then they are going to be scrutinized in every other sex-assault case they have investigated. Likewise, prosecutors will come under the kind of scrutiny that the press and others rarely give them if they are seen to try to fabricate evidence against one of the most respected sports figures in Pennsylvania.
Now, I cannot say in this post that Jerry Sandusky is guilty of anything. In the accusation from more than a decade ago, police tried to trick him into making a self-incriminating statement, and their scheme fell apart. (That is why I say that just because someone accused him of sexual assault more than 10 years ago might very well mean absolutely nothing.)
Nor can I say I believe the guy is innocent. I don't know, and right now I have no idea about what the investigation is doing, what people are saying, and if there is evidence beyond the "he said, he said" nature of this case. If a number of other young men come forward and make similar claims -- claims, I might add, that could be demonstrated to be credible -- then things might become much more difficult for Sandusky.
Here is the problem in a nutshell: the law permits sexual-assault-molestation cases to go to trial simply on the word of an accuser. No physical evidence is necessary. (I don't know the details of Pennsylvania law, but when the federal government became involved in this area through the Mondale Act, one of the provisions was that states change their law to eliminate the need for physical evidence or anything else besides an accuser's words. I suspect that Pennsylvania has fallen into line.)
I'm extremely wary of cases that are built upon someone's accusation, and especially someone who would stand to gain money (should a jury convict) through a lawsuit. I would be curious to know if any of the accusing parties have approached Sandusky or the organization he represents to demand money. Maybe that has not happened, but in other cases, we do find money to be a powerful motivator.
I know nothing about Sandusky's attorney, Joseph Amendola. He might be an excellent attorney, someone who is well-versed in these kinds of cases, or he might be a friend who has handled other matters for Sandusky and has been called upon for this case as well. The important thing here is that if Amendola is NOT experienced in dealing with sexual assault accusation cases, or if he is not familiar with the reasons that such cases are very, very different from other kinds of criminal cases, then Sandusky could be in serious trouble, even if he is innocent.
Jerry Sandusky's fame and reputation have served as a check upon the authorities in Pennsylvania to throw together a slipshod case in hopes of scoring a quick and easy victory. Nonetheless, here is a man whose reputation forever is stained, and if he is innocent and the accusations false, may those who accused him be forced to pay dearly. If the accusers are telling the truth, then I would hope the law would deal properly with him. We shall see.
Thursday, March 31, 2011
What if you are falsely accused? Part I: What NOT to do
None of us believe that we ever will be falsely accused of a sex crime. After all, we have been brought up to believe that the USA has the best "justice" system in the world, and that police and prosecutors are honest people who never would try to frame an innocent person.
Unfortunately, that is not the case anymore. Police gladly will frame innocent people and prosecutors are all-too-happy to put innocent people on trial or force them to plead out to crimes they didn't commit because they cannot afford to defend themselves. THAT is the reality of law in the USA.
Most likely, the person reading this won't ever be charged in a sexual assault/child molestation case, as prosecutors cannot charge everyone. If you are falsely accused, however, there are a number of things that you should do -- and not do. I will deal with those things in this post.
After you get over the first wave of shock and anger of being falsely accused, you probably just are confused and want this nightmare to go away. You have to understand, however, that the police and the local prosecutors really are not interested in whether or not you actually did the things of which you are accused. That's right; they are not interested. They already have decided you are guilty, and their mission is to spin everything that they find into a way to get you thrown into prison for the rest of your life.
It does not matter if the accusations are a lie. Cops and prosecutors lie all the time and the honest people in that business often are intimidated and threatened by the bad guys. You are going to be dealing with people who don't care if you are innocent or guilty; they already have decided you are guilty, and they don't like to be confused with facts.
So, let us assume that you are accused. What do you do. What do you NOT do?
Don't Talk to the Police
The first thing that you DO NOT do is talk to the police without an attorney present. If you wish to have an expert tell you why, just watch this video by a law school professor telling people NOT to talk to the police.
Yes, you reply, but the police will listen. They will hear your story and then they will realize that the charges are ridiculous and the whole thing will go away. Right.
It is not going to happen. If you sit down with the police, they are not going to try to find out what occurred; no, they are going to try to find a way to twist your statements into an admission of guilt. No matter how much they tell you that they only are trying to help, it is a lie.
As Tonya Craft has told me more than once, charges of child molestation and rape are very different than, say, charges that you robbed a convenience store. Regarding the latter, you can present evidence that you were not there or that the eyewitness has engaged in mistaken identity. (Granted, cops try to find ways to work around alibis in these kinds of cases, too, but if you can prove you were not there, you have a strong case for innocence.)
In charges of child molestation or rape, however, alibis simply don't matter. For example, "judge" brian outhouse actually claimed in court that prosecutors had demonstrated that Tonya Craft molested the daughter of Sandra Lamb at her home -- before she even bought the home and moved into it. Logically, there was no way that Ms. Craft could have been at that place when prosecutors said she was (and entered no evidence at all to show she had been there before she bought the house), but it did not matter.
Why? House and the prosecutors already were of the mindset that they were going to rig a conviction, and had no interest in evidence. That is common in such cases. We have seen it not only in the Craft case, but also all of the other cases covered on this blog, including the one against Michael Rasmussen.
Look what happened when Rasmussen agreed to talk to detectives Young Austin and Kim Selkirk. They wrote down a bunch of notes and claimed that he had "confessed" to everything they had claimed. Given that Selkirk and Austin did not record this supposed momentous "confession" and given that Selkirk's notes conflicted with the state's own "evidence," it is not hard to conclude that Austin and Selkirk are lying.
A friend of mine who was a police officer in Florida for many years told me that all too often, cops reach conclusions first and then try to find "evidence" that fits their theories. A good investigator, he told me, tries to let the evidence lead to a conclusion, not the other way around.
Yet, cops also are under pressure to charge people, to close cases, and to help prosecutors get convictions. The "win at all costs" combined with the fact that the ONLY "evidence" needed in many rape and child molestation cases is an accusation. For example, it was painfully clear in the Duke Lacrosse Case that (1) Crystal Mangum was not raped, and (2) that the three lacrosse players could not have been the "rapists," anyway.
Yet, the charges stayed live for a year even though they had thoroughly been debunked by the attorneys and by outside experts who saw the "evidence" for what it was: a sham. But because of political considerations and because of the feminist ideologies driving the charges, the case very well could have gone to trial and there very well could have been a conviction.
It is very rare in these kinds of cases that police and prosecutors will look at evidence that does not fit a profile that says you are guilty. That is just the way it is. Don't talk to the police; they only will use your words against you.
Don't Assume the People in the System will be Fair
Americans like to believe that this is a country where fairness and justice reign. That is nonsense, but most people don't discover just how bad things are until they are charged with something they did not do. The American courts will go overboard to convict the innocent, and once there is a conviction, it is almost impossible to have it overturned, as the courts love "finality."
As I noted in a previous post, the immunity that government players have in the justice system also provides perverse incentives for them to lie. After all, prosecutors don't get raises and promotions for "seeking justice." They get raises and promotions for winning.
Chris Arnt believed that he could ride a conviction against Tonya Craft to much higher political office. Despite the fact that he lied in court, suborned perjury, and broke the law with impunity, he still is employed as a prosecutor, going after other people who allegedly have broken the law.
In other words, Arnt paid no legal price for his actions. Whether or not he ever can be elected to public office after his show of dishonesty depends upon how much garbage voters in North Georgia are willing to swallow.
Even though the police will accuse you of "not cooperating," you MUST invoke your Constitutional rights at this point. Trust me when I tell you that neither police nor prosecutors care about your rights and will violate them with impunity if they think they can get away with it.
You have to be responsible to protect yourself, and that means invoking your rights. Don't talk to the police, period.
In Part II, I will write about choosing an attorney. In Part III, I will point out resources you can use to help defend yourself.
NOTE: Good news from North Carolina. A federal judge has ruled that the lawsuits filed by various Duke lacrosse players against Duke University, Durham, and Mike Nifong can proceed. If Duke and Durham lose on appeal, I suspect that the defendants will settle quickly with the plaintiffs.
Unfortunately, that is not the case anymore. Police gladly will frame innocent people and prosecutors are all-too-happy to put innocent people on trial or force them to plead out to crimes they didn't commit because they cannot afford to defend themselves. THAT is the reality of law in the USA.
Most likely, the person reading this won't ever be charged in a sexual assault/child molestation case, as prosecutors cannot charge everyone. If you are falsely accused, however, there are a number of things that you should do -- and not do. I will deal with those things in this post.
After you get over the first wave of shock and anger of being falsely accused, you probably just are confused and want this nightmare to go away. You have to understand, however, that the police and the local prosecutors really are not interested in whether or not you actually did the things of which you are accused. That's right; they are not interested. They already have decided you are guilty, and their mission is to spin everything that they find into a way to get you thrown into prison for the rest of your life.
It does not matter if the accusations are a lie. Cops and prosecutors lie all the time and the honest people in that business often are intimidated and threatened by the bad guys. You are going to be dealing with people who don't care if you are innocent or guilty; they already have decided you are guilty, and they don't like to be confused with facts.
So, let us assume that you are accused. What do you do. What do you NOT do?
Don't Talk to the Police
The first thing that you DO NOT do is talk to the police without an attorney present. If you wish to have an expert tell you why, just watch this video by a law school professor telling people NOT to talk to the police.
Yes, you reply, but the police will listen. They will hear your story and then they will realize that the charges are ridiculous and the whole thing will go away. Right.
It is not going to happen. If you sit down with the police, they are not going to try to find out what occurred; no, they are going to try to find a way to twist your statements into an admission of guilt. No matter how much they tell you that they only are trying to help, it is a lie.
As Tonya Craft has told me more than once, charges of child molestation and rape are very different than, say, charges that you robbed a convenience store. Regarding the latter, you can present evidence that you were not there or that the eyewitness has engaged in mistaken identity. (Granted, cops try to find ways to work around alibis in these kinds of cases, too, but if you can prove you were not there, you have a strong case for innocence.)
In charges of child molestation or rape, however, alibis simply don't matter. For example, "judge" brian outhouse actually claimed in court that prosecutors had demonstrated that Tonya Craft molested the daughter of Sandra Lamb at her home -- before she even bought the home and moved into it. Logically, there was no way that Ms. Craft could have been at that place when prosecutors said she was (and entered no evidence at all to show she had been there before she bought the house), but it did not matter.
Why? House and the prosecutors already were of the mindset that they were going to rig a conviction, and had no interest in evidence. That is common in such cases. We have seen it not only in the Craft case, but also all of the other cases covered on this blog, including the one against Michael Rasmussen.
Look what happened when Rasmussen agreed to talk to detectives Young Austin and Kim Selkirk. They wrote down a bunch of notes and claimed that he had "confessed" to everything they had claimed. Given that Selkirk and Austin did not record this supposed momentous "confession" and given that Selkirk's notes conflicted with the state's own "evidence," it is not hard to conclude that Austin and Selkirk are lying.
A friend of mine who was a police officer in Florida for many years told me that all too often, cops reach conclusions first and then try to find "evidence" that fits their theories. A good investigator, he told me, tries to let the evidence lead to a conclusion, not the other way around.
Yet, cops also are under pressure to charge people, to close cases, and to help prosecutors get convictions. The "win at all costs" combined with the fact that the ONLY "evidence" needed in many rape and child molestation cases is an accusation. For example, it was painfully clear in the Duke Lacrosse Case that (1) Crystal Mangum was not raped, and (2) that the three lacrosse players could not have been the "rapists," anyway.
Yet, the charges stayed live for a year even though they had thoroughly been debunked by the attorneys and by outside experts who saw the "evidence" for what it was: a sham. But because of political considerations and because of the feminist ideologies driving the charges, the case very well could have gone to trial and there very well could have been a conviction.
It is very rare in these kinds of cases that police and prosecutors will look at evidence that does not fit a profile that says you are guilty. That is just the way it is. Don't talk to the police; they only will use your words against you.
Don't Assume the People in the System will be Fair
Americans like to believe that this is a country where fairness and justice reign. That is nonsense, but most people don't discover just how bad things are until they are charged with something they did not do. The American courts will go overboard to convict the innocent, and once there is a conviction, it is almost impossible to have it overturned, as the courts love "finality."
As I noted in a previous post, the immunity that government players have in the justice system also provides perverse incentives for them to lie. After all, prosecutors don't get raises and promotions for "seeking justice." They get raises and promotions for winning.
Chris Arnt believed that he could ride a conviction against Tonya Craft to much higher political office. Despite the fact that he lied in court, suborned perjury, and broke the law with impunity, he still is employed as a prosecutor, going after other people who allegedly have broken the law.
In other words, Arnt paid no legal price for his actions. Whether or not he ever can be elected to public office after his show of dishonesty depends upon how much garbage voters in North Georgia are willing to swallow.
Even though the police will accuse you of "not cooperating," you MUST invoke your Constitutional rights at this point. Trust me when I tell you that neither police nor prosecutors care about your rights and will violate them with impunity if they think they can get away with it.
You have to be responsible to protect yourself, and that means invoking your rights. Don't talk to the police, period.
In Part II, I will write about choosing an attorney. In Part III, I will point out resources you can use to help defend yourself.
NOTE: Good news from North Carolina. A federal judge has ruled that the lawsuits filed by various Duke lacrosse players against Duke University, Durham, and Mike Nifong can proceed. If Duke and Durham lose on appeal, I suspect that the defendants will settle quickly with the plaintiffs.
Wednesday, March 30, 2011
How far should prosecutorial immunity go? Apprently, SCOTUS believes into infinity. Or, Liability for Thee, but not for Me!
Because this blog deals with prosecutorial misconduct, the issue of immunity is front-and-center. Years ago, the U.S. Supreme Court (SCOTUS) ruled that judges and prosecutors have absolute immunity from civil action, which means that for the most part, they are not liable for pursuing wrongful convictions.
Because the various state bars are very, very reluctant to discipline prosecutors, the typical prosecutor knows he or she pretty much is invulnerable. Yes, they can be criminally prosecuted, but no prosecutor in the history of this country ever has been convicted of criminal malfeasance for conduct in the "line of duty," even though it has been obvious that at least in some cases, the criminal behavior was deliberate and cold. Thus, armed with that knowledge, a prosecutor knows that he or she does not operate with the same set of personal restrictions that hold back the worst behavior in other occupations.
The SCOTUS ruled in the Imbler v. Pachtman case (1976) that district attorneys or prosecutors were found to have full immunity from civil suits resulting from their government duties. Unlike the qualified immunity that was given to many public officials, the justices reasoned that while a wrongly-charged defendant would not be able to seek legal satisfaction against a prosecutor who engaged in outrageous conduct, nonetheless the immunity would better fit a broad "social good" as the court saw it.
Obviously, the court opened a huge can of worms, as it basically said that as long as a prosecutor can claim he or she was doing something within the scope of prosecutorial duties, then that person cannot be sued, even if he or she deliberately withheld evidence. Furthermore, the SCOTUS declared that
Unfortunately, the case was settled before the Supremes could rule on it. However, they gave what I hold to be a partial answer in Connick v. Thompson, declaring that the DA's office of New Orleans Parish could not be held liable for failure of its prosecutors to turn over exculpatory evidence. In other words, the SCOTUS ruled that violation of the Brady Rule inferred no particular responsibility upon the people who were responsible for violating it.
Keep in mind that most readers of this post are not prosecutors, nor are public officials. That means that the laws regarding liability are imposed differently upon them than upon those who are sworn to uphold the law and who hold special powers in bringing people to trial. The people with greater responsibility have less liability than everyone else.
If that seems to be an outrage, that is because it IS an outrage. What SCOTUS has done once again is to declare that prosecutors are a special class of people who, de facto, do not have to obey the law. And, guess what? There are lots of prosecutors who take advantage of that privilege and, surprise, surprise, violate the law with impunity.
The Rule of Law is supposed to mean just that: rule of law. A nation that has Rule of People Who Do Whatever They Want cannot survive as a decent society.
Because the various state bars are very, very reluctant to discipline prosecutors, the typical prosecutor knows he or she pretty much is invulnerable. Yes, they can be criminally prosecuted, but no prosecutor in the history of this country ever has been convicted of criminal malfeasance for conduct in the "line of duty," even though it has been obvious that at least in some cases, the criminal behavior was deliberate and cold. Thus, armed with that knowledge, a prosecutor knows that he or she does not operate with the same set of personal restrictions that hold back the worst behavior in other occupations.
The SCOTUS ruled in the Imbler v. Pachtman case (1976) that district attorneys or prosecutors were found to have full immunity from civil suits resulting from their government duties. Unlike the qualified immunity that was given to many public officials, the justices reasoned that while a wrongly-charged defendant would not be able to seek legal satisfaction against a prosecutor who engaged in outrageous conduct, nonetheless the immunity would better fit a broad "social good" as the court saw it.
Obviously, the court opened a huge can of worms, as it basically said that as long as a prosecutor can claim he or she was doing something within the scope of prosecutorial duties, then that person cannot be sued, even if he or she deliberately withheld evidence. Furthermore, the SCOTUS declared that
alternative sanctions to civil lawsuits against prosecutors were available to deter a prosecutor’s malicious and dishonest behavior. Indeed, the availability of bringing criminal charges against a prosecutor, as well as the availability of professional discipline by bar associations, would “not leave the public powerless.” “These checks,” said the Court, “undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.”People who saw that decision as overreaching had some hope in a case Pottawattamie County v. McGhee in which prosecutors clearly framed innocent people for a murder. In fact, prosecutors claimed in their defense the following outrageous statement: there is no constitutional "right not to be framed.” That's right; prosecutors were claiming that even if they framed someone, that was OK, as the Constitution does not forbid it.
Unfortunately, the case was settled before the Supremes could rule on it. However, they gave what I hold to be a partial answer in Connick v. Thompson, declaring that the DA's office of New Orleans Parish could not be held liable for failure of its prosecutors to turn over exculpatory evidence. In other words, the SCOTUS ruled that violation of the Brady Rule inferred no particular responsibility upon the people who were responsible for violating it.
Keep in mind that most readers of this post are not prosecutors, nor are public officials. That means that the laws regarding liability are imposed differently upon them than upon those who are sworn to uphold the law and who hold special powers in bringing people to trial. The people with greater responsibility have less liability than everyone else.
If that seems to be an outrage, that is because it IS an outrage. What SCOTUS has done once again is to declare that prosecutors are a special class of people who, de facto, do not have to obey the law. And, guess what? There are lots of prosecutors who take advantage of that privilege and, surprise, surprise, violate the law with impunity.
The Rule of Law is supposed to mean just that: rule of law. A nation that has Rule of People Who Do Whatever They Want cannot survive as a decent society.
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