Date: Wed, 30 Mar 2011 13:04:38 -0700
From:
Subject: docs.
--Forwarded Message Attachment--
From: Saved by Windows Internet Explorer 7
Subject: PEOPLE = STATE, BOUVIER'S 1919 - Yahoo! Mail
Date: Tue, 25 Jan 2011 09:30:32 -0600
 | |||
|
--Forwarded Message Attachment--
From: Saved by Windows Internet Explorer 7
Subject: Police and Prosecutorial Misconduct
Date: Fri, 25 Mar 2011 12:30:38 -0500
 | and Judicial Misconduct - U.S. v. Jannotti, 673 F.2d 578, 614 (3d Cir. 1982) |   |
| Note: We add links to updates with the original news articles reporting police and/or prosecutor misconduct, so be sure to scroll down to check for "new news". LIVE CRIMINAL LAW INFORMATION Truth in Justice is pleased to join with LivePerson to bring you live, online consultations with experts in criminal law, at low cost. Follow the link on the main page, or click on the one here: If you already know you need to retain a lawyer, but don't know who is best suited to your needs, click Legal Resources to use the free lawyer search provided by AVVO.  The Justice Project's Recommendations to Ensure Prosecutorial Accountability
Illinois. In Zion, IL, on Mother's Day in 2005, 8-year-old Laura Hobbs and her friend, 9-year-old Krystal Tobias, disappeared while bike riding. After searching all night, Laura's father, Jerry Hobbs, found them, stabbed to death. There followed a marathon, 48-hour police interrogation, after which it was announced that Jerry had confessed. It was a classic, coerced, false confession, but the media went with it. Nancy Grace called him "a monster." When the physical evidence -- DNA -- proved him innocent, the state took another 2 1/2 years to set him free and look for serial killer Jorge Torrez. How many lives did the coerced false confession cost? Link:California. Caramad Conley of San Francisco spent 18 years in prison for a crime he didn't commit because then-homicide investigator Earl Sanders, who would later become police chief, had stood by in court while the star prosecution witness, a paid snitch, lied under oath. Business as usual. California. Only a tiny percentage of prosecutors who engaged in misconduct were disciplined by the State Bar of California during a 12-year period, according to a report released October 4, 2010. Among 707 cases between 1997 and 2009 in which courts explicitly determined that prosecutors had committed misconduct, only six prosecutors -- 0.8% -- were disciplined by the State Bar of California. Only 10 of the 4,741 disciplinary actions by the state bar during the same period involved prosecutors. "Preventable Error: A Report on Prosecutorial Misconduct 1997-2009," issued by the Innocence Project's Northern California chapter, was written by Kathleen Ridolfi and Maurice Possley, a visiting research fellow at the project. Possley won a Pulitzer Prize for his reporting at the Chicago Tribune. Ridolfi is a professor at Santa Clara University School of Law. Click HERE to download the full report (pdf format). North Carolina. SBI agent Duane Deaver will likely face a judge to explain why he shouldn't be sent to jail for making shifting explanations about criminal blood tests in the case of Greg Taylor, found innocent by the NC Innocence Inquiry Commission. The most likely question a judge will consider in Taylor's case is simple: Did Deaver lie to the commission in September 2009 about blood tests performed on Taylor's SUV in 1991. The answer should be obvious. Missouri. A northwest Missouri judge has ordered all evidence thrown out in a decade-old murder case in which a former Kansas City attorney is accused of beating his law partner to death in their downtown office. This is some of the most egregious prosecutorial misconduct documented by a court in a long time. When the defense says "show me," the prosecution says "no." Texas. Police in Richardson, Texas put a lot of effort into coercing a rape confession from deaf teenager Stephen Brodie back in 1990. Maybe that's why they continue to insist they had the right guy, even though the physical evidence tied the crime -- and 15 other rapes in the area -- to Robert Waterfield. Brodie spent 10 years in prison for the crime. He has now brought a petition to establish his innocence, based on Waterfield's fingerprint on the window of the victim's bedroom. The cops remain in denial. UPDATE: Stephen Brodie was exonerated and freed on September 29, 2010. Wisconsin. In response to the title of an article posted (below) just a few weeks ago, about the rarity of discipline for Wisconsin prosecutors, we can only add: "You're darn tootin'!" Both the Office of Lawyer Regulation and the Wisconsin Department of Justice determined in 2009 that it was neither unethical nor illegal for Calumet County DA Ken Kratz to send sexually charged text messages to the victim of a vicious domestic abuse case he was prosecuting. His conduct doesn't look so good in daylight. The rats who covered for him have deserted his sinking ship, but remember: The people now prosecuting Kratz are the same ones who covered for him. UPDATE: Kratz resigned from his post as Calumet County DA on October 1, 2010. New York. Prosecutors' failure to disclose that hypnosis was used to help a witness recover memories of alleged sex abuse as a child does not invalidate a defendant's guilty plea, a federal appeals court has ruled. The 2nd U.S. Circuit Court of Appeals refused to grant the habeas petition sought by Jesse Friedman, who was seeking to undo his 1988 guilty plea in a molestation case that rocked Nassau County, N.Y., and became the subject of the documentary "Capturing the Friedmans." While the Court denied the appeal, the judges urged the Nassau DA to reopen the case. In the interest of justice. Wisconsin. The Office of Lawyer Regulation wants to publicly reprimand Outagamie County District Attorney Carrie Schneider, saying she didn't disclose a plea offer made to a witness and allowed the witness to lie under oath about it. The allegations against Schneider stem from a complaint filed in 2007 by Sheila Martin Berry, the former victim/witness coordinator for Winnebago County who runs Truth In Justice, an organization that publicizes wrongful convictions and misconduct by police and prosecutors. DAs rarely disciplined in Wisconsin. New York. In vacating a murder conviction and barring prosecutors from retrying the case, a federal judge in New York has lashed out at the Brooklyn district attorney's Office for failing to take responsibility for its prosecutors' alleged misconduct. At a contentious, 90-minute habeas corpus hearing on June 8, 2010, Eastern District Judge Dora L. Irizarry noted that petitioner Jabbar Collins, a renowned jailhouse attorney, had uncovered numerous documents while serving his 34-years-to-life sentence suggesting that prosecutors had withheld evidence, coerced witnesses and lied to the court and the jury. The DA's wagons are circled. New York. The trial judge should have caught this, but instead put his seal of approval on a coerced Alford plea by Rashjeem Richardson and sent him to prison for a knife attack someone else committed. Rochester prosecutors said four witnesses identified Mr. Richardson, when only one did so, and she retracted the next day because she had been drunk when she fingered him. When faced with a choice between a conviction and truth, prosecutors in Rochester choose a conviction. Florida. Now that Anthony Caravella's conviction for the 1983 rape and murder of Ada Cox Jankowski has been tossed by DNA, officials there are forced to face the fact that now-retired Sheriff's Deputy Tony Fantigrassi 's real talent was extracting false confessions from innocent people. And then there's the crime lab. A legacy of corruption. New Jersey. An assistant Camden County prosecutor accused of withholding evidence resigned yesterday after prosecutors agreed they never turned over all the information required when a Camden man charged with murder tried to prove his innocence. Harry Collins, who has been with the office for more than 15 years, resigned after the prosecution of Perman Pitman came under scrutiny. Pitman was freed last month shortly after officials discovered a handwritten note by Collins that said a witness had been paid to lie. "Please destroy this note." Maryland. In Baltimore, Donnie Chestnut's trial was delayed 15 times. Small wonder. The state had no basis for the drug charges filed against him, and no justification for shooting him four times. He was acquitted -- and filed suit the same day. North Carolina. State Bureau of Investigation (SBI) agent Michael Deaver stands with a foot in each camp -- junk science and egregious police misconduct. He can take a great deal of credit for Greg Taylor's conviction for a crime he didn't commit, because Deaver selectively reported -- and testified to -- finding blood in Taylor's truck, when he knew that more sophisticated tests showed the substance wasn't blood at all. SBI Director Robin Pendergraft stands behind Deaver, but there is a growing call across the state: Re-examine Old Cases. Colorado. So just what have cops and prosecutors in the Rocky Mountain State learned from the case of Tim Masters--a vulnerable kid targeted to clear a disturbing murder, railroaded through court and convicted on speculation and innuendo because there was no evidence against him? Douglas County Sheriff David Weaver and DA Carol Chambers give a resounding answer: Nothing, absolutely nothing. Massachusetts. Frankly, we never thought we would see it happen. Between 1991 and 1993, Boston U.S. Attorney Jeffrey Auerhahn concealed evidence that might have cleared Vincent Ferrara and Pasquale Barone of murder charges. No big deal. Business as usual. In 2005, the USDOJ Office of Professional Responsibility found Auerhahn acted with "reckless disregard of discovery obligations," but all he "suffered" was a private reprimand. But Auerhahn's conduct has been referred to a state agency, and he'll face a 3-judge disciplinary panel. The Tide is Turning. Click HERE for the back story. Illinois. A case that was about whether a convicted man is innocent has morphed into an increasingly personal brawl between two heavyweights unwilling to back down—with academics, prosecutors, freedom of the press advocates, and students hanging on the judge's decision. The Professor and the Prosecutor. Iowa. The U.S. Supreme Court announced late on January 4, 2010 that it had dismissed an important pending case over prosecutorial immunity after being alerted that the dispute had been settled. The action stops in its tracks a case that could have produced a landmark decision that many believed would have reined in the longstanding tradition that prosecutors cannot be held liable for their actions as prosecutors. Close call for crooked prosecutors. More U.S. Federal Court. This time it's the federal court in Columbus, GA, where U.S. District Judge Clay D. Land issued a 19-page order harshly criticizing the U.S. Attorneys Offices for the Middle and Southern Districts for offering sweetheart deals to big-time drug dealers in order to fabricate a case against defense attorney J. Mark Shelnutt -- who was acquitted of all charges brought by the feds. Same song, east coast verse. U.S. Federal Court. A federal judge on December 15, 2009 dismissed the entire criminal stock-options backdating case against two former Broadcom Corp. executives, concluding that the government's handling of the case "distorted the truth-finding process" and made a "mockery" of the defendants' due process rights. Before a courtroom packed with observers and other parties in the case, U.S. District Court Judge Cormac Carney of Santa Ana, Calif., entered a judgment of acquittal for former Chief Financial Officer William Ruehle, who has been in trial since Oct. 23. Carney's decision was met at first with stunned silence. These prosecutors aren't used to losing or getting caught. California. Ed Jagels, renowned as one of California's toughest district attorneys, built his career on the Kern County child molestation cases of the 1980s, putting more than two dozen men and women behind bars to serve decades-long sentences for abusing children. Appellate judges now say most of those crimes never happened. Since the late 1980s, all but one of 26 convictions Jagels secured have been reversed. Kern County has paid $9.56 million to settle state and federal suits brought by former defendants and their children. But he's retiring, leaving on his own terms, not held accountable for his actions. Why not? Because Kern County voters kept re-electing him. Florida. William Dillon spent 27 years in prison for a murder he didn't commit based on fraudulent "evidence" from dog handler John Preston (discredited in 1984) and perjured "snitch" testimony from another jail inmate. Now that the snitch testified at a legislative hearing about how Brevard County detectives got him to lie under oath, the Brevard County Sheriff's Office reopened the homicide investigation. Isn't it a bit late? Florida. Actually, all over the US, but the latest example of a wolverine prosecutor who gets convictions regardless of guilt is in Broward County, Florida -- Robert Carney. Of course, he's a judge now, and that's typical, too. A belt full of scalps qualifies prosecutors to move up to the bench and apply the same, twisted legal rationales to the cases tried by and before them. Congratulations, Judge Carney. Strike Four. Wolverine prosecutors travel in packs. Robert Carney's successor, Carolyn McCann, launched a full-court (no pun intended) effort to assault the credibility of Edward Blake and his lab, Forensic Science Associates. Why? Blake not only found DNA in the Anthony Caravella case, but his tests cleared Caravella of rape and murder charges. In 2001, the Broward County Sheriff's crime lab "couldn't find" any DNA evidence. They travel in the same pack. Seek the truth? No. Protect the conviction. Mississippi. Former Hinds County Circuit Court Judge Bobby DeLaughter, 55, has resigned his job and pled guilty to misleading authorities. His plea means he'll be spending a little over a year--18 months--in a federal prison, and he will lose his law license. He'll not have to answer for what he did to Cedric Willis. DeLaughter sent an innocent man to prison for the rest of his natural life, even though evidence was available to the contrary. DeLaughter is no victim. California: As Michael Gressett waited for a jury verdict in a molestation trial, the Contra Costa County sex crimes prosecutor had what he called a "nooner," bringing a fellow prosecutor to his Martinez home for intercourse. What happened next, on May 8, 2008, is the subject of an explosive rape case brought by the state attorney general. It involves a gun and an ice pick, but rests on a simple question that Gressett often asks juries to decide: Was the sex consensual or forced? Do as I say, not as I do. Illinois: A Cook County judge ordered a new trial for convicted murderer Victor Safforld on May 22, 2009 after finding three Chicago police detectives once supervised by disgraced former Cmdr. Jon Burge likely beat him into confessing. "... I have a more complete history of the behavior of these detectives," Circuit Judge Clayton J. Cranesaid. "That evidence is staggering. That evidence is damning." Wisconsin: Records show that over the past four years, Michael Froehlich, the son of Outagamie County (Appleton) Circuit Judge Harold Froehlich, has been arrested more than a dozen times for allegedly making threatening phone calls, drunken-driving related offenses, resisting arrest, battery, false imprisonment and threatening a sheriff's deputy. During that time, Froehlich has been criminally prosecuted just once — in 2008 — after he was caught driving drunk for the third time with a 0.361 percent blood-alcohol level, more than four times the legal limit. Is there a quid pro quo here between the judge and the DA? (See Morphing DNA, Disappearing Evidence.) There's just something fishy about it. Virginia: A top state lawyer defending Virginia death sentences has been accused of misconduct by the Virginia State Bar, an agency of the Virginia Supreme Court. The Virginia State Bar alleges that Katherine Baldwin Burnett, senior assistant Virginia attorney general and director of the office's capital litigation unit, made false statements during a bar hearing in April 2006 and interfered with another lawyer's access to evidence. Scaring jurors into silence after the trial is over. Illinois: When Johnny Savory was 14, Peoria, IL police and prosecutors used his coerced, false confession to convict him of murdering two of his friends. When he was re-tried, the state trotted out two prison snitches who claimed Johnny confessed the murders to them, and again got a conviction. The snitches have recanted, Johnny has been paroled, but he continues to seek his own exoneration and the real killer's identity. Hoping DNA will do it. New York: Nineteen years ago, police in Huguenot, NY forced 17-year-old Kevin Keller to sign a confession to the murder of Elaine Ackerman. Kevin spent 18 months in jail before the local court suppressed the confession and threw out the state's shaky case. Then, in early 2009, a DNA cold hit was made, identifying James Babcock as Ms. Ackerman's rapist/killer. Will Keller finally clear his name? Wisconsin: About 14 years ago, Dane County Assistant District Attorney John Norsetter allegedly got a call that attorneys for Ralph Armstrong say would've blown the murder case against their client apart — if only they'd known about it. A proposed rule pending before the Wisconsin Supreme Court would require prosecutors who receive such explosive information to reveal it to the defense — and possibly to investigate it. The current Supreme Court rules for prosecutors require only that exculpatory evidence be turned over to the defense before trial. No more turning a blind eye. ARMSTRONG UPDATES: 4/1/09 -- John Norsetter, the assistant district attorney who prosecuted Ralph Armstrong for the murder of UW-Madison student Charise Kamps in 1980, testified Wednesday that he didn't recall until recently that he'd gotten a telephone call in the mid-1990s from a Texas woman who claimed Armstrong was innocent. "The only thing that I clearly remember is (saying) we convicted the right man," the now-retired prosecutor said. Armstrong Hearing, Day 1. 4/2/09 -- The 29-year-old murder case against Ralph Armstrong appeared in jeopardy Thursday after a judge found that a Dane County prosecutor failed to notify the defense of a reported confession by Armstrong's brother in 1995. Reserve Circuit Court Judge Robert Kinney also found that Assistant District Attorney John Norsetter violated a court order in 2006, resulting in destruction of key DNA evidence. Armstrong Hearing, Day 2. 8/1/09 -- Ralph Armstrong's long wait for freedom, four years after his conviction for the 1980 rape and murder of a UW-Madison student was overturned, came closer to an end Friday after a judge dismissed the charges against him. Reserve Judge Robert Kinney, of Rhinelander, said a Dane County prosecutor in 1995 should have told Armstrong's attorneys about a reported confession to the murder of Charise Kamps by Armstrong's brother. He also said a prosecutor-ordered test in 2006 caused the destruction of a semen stain on a piece of evidence that could have eliminated Armstrong as a suspect in Kamps' murder. Is it really almost over? Wisconsin: It was one of the most terrifying crimes ever to hit Kaukauna, WI, a community of 13,000. On June 25, 2000, Shanna Van Dyn Hoven, a 19-year-old UW-Madison student, was stabbed to death as she jogged by a quarry near her home about 6 p.m. Prosecutors said Kenneth Hudson stabbed Van Dyn Hoven, a stranger, in a fit of misplaced rage, and that they caught him red-handed, covered in her blood. Newly uncovered evidence, however, appears to support Hudson's contentions -- and raises more questions about the conduct of the police and the prosecutor, Vince Biskupic. Morphing DNA, Disappearing Evidence Related Links
Click HERE for full coverage of Wisconsin's Vince Biskupic money-for-leniency scandal. Click HERE for more on Vince Biskupic's approach to cooking up a case. California. As part of a criminal justice review unprecedented in county history, the Santa Clara County public defender's has launched a massive project to revisit 1,500 or more sexual assault convictions dating back two decades to determine whether innocent people may have been put behind bars. Members of Valley Medical Center's Sexual Assault Response Team have been videotaping examinations of patients since 1991, but prosecutors failed to inform defense attorneys in cases involving those patients that such critical evidence existed. Under pressure to answer for the failure, District Attorney Dolores Carr has since revealed there are 3,300 such tapes in existence, and this week she vowed to inform defense attorneys of each case involving a medical-exam videotape where a defendant was convicted. Better late than never. United States. An angry federal judge held Justice Department lawyers in contempt yesterday for failing to deliver documents to former senator Ted Stevens's legal team, as he had ordered. "That was a court order," U.S. District Judge Emmet G. Sullivan bellowed. "That wasn't a request. I didn't ask for them out of the kindness of your hearts. . . . Isn't the Department of Justice taking court orders seriously these days?" Judges rarely hold prosecutors in contempt. They're following in Mike Nifong's footsteps. Pennsylvania. For years, the juvenile court system in Wilkes-Barre, PA operated like a conveyor belt: Youngsters were brought before judges without a lawyer, given hearings that lasted only a minute or two, and then sent off to juvenile prison for months for minor offenses. The explanation, prosecutors say, was corruption on the bench. In one of the most shocking cases of courtroom graft on record, two Pennsylvania judges have pled guilty to taking millions of dollars in kickbacks to send teenagers to two privately run youth detention centers. $2.6 Million in Payoffs. But that's just the beginning. The two former judges, now admitted felons, are cooperating with federal law enforcement officials as they continue their probe into corruption at the courthouse Conahan used to run. The U.S. Attorney's Office is, in fact, investigating possible case fixing in Luzerne County's uninsured and underinsured motorist cases and has been for some time. So you think it's just bad kids and adult criminals who were abused? Everybody suffers. North Carolina. It used to be that all you needed for a conviction was a vague allegation of sexual abuse by a very young child and a signed confession by a day care worker. But jurors in Franklin, NC are picky. In Michael Bradley's case, they demanded actual evidence. All that the state could give them was the word of a detective who thinks he can tell in minutes if someone is guilty and will use harsh techniques against a timid person to coerce a conviction to a crime that may not have happened at all. Their verdict: Not Guilty. District of Columbia/Alaska. A special agent with the FBI is accusing government prosecutors in the Ted Stevens case of intentionally withholding exculpatory evidence from Stevens' lawyers and scheming to conceal a witness from the defense team. Did the government cheat to convict the Senator? California. Herbie Gonzalez of Los Angeles, CA spent 196 days in jail, framed by two sheriff's investigators, Katherine Gallagher and Randy Seymour, who didn't hesitate to perjure themselves to make murder, robbery and residential burglary charges stick. When Judge Cary Nishimoto dismissed the charges because Herbie's "confession" was clearly coerced, Detectives Gallagher and Seymour implied he got off on a "technicality." And when the real killer, Milton Gallardo, was identified by DNA, Gallagher and Seymour continued to claim that Herbie was "somehow" involved in the crime. Once you frame a suspect, never admit you are wrong. Illinois. DNA evidence has been widely embraced over the last two decades as a powerful forensic tool to prove a defendant's guilt or innocence. But in Lake County, authorities have sometimes pressed for convictions even when the DNA doesn't match a suspect. When DNA evidence excluded a man convicted in the rape and battery of a 68-year-old woman, Mermel suggested the victim had consensual sex with someone else. When DNA evidence excluded a man in the rape and murder of an 11-year-old girl, Mermel and another prosecutor suggested that the girl may have been sexually active. The DNA, he said, was a "red herring." And, just recently, when lawyers for the man charged in the killing of his 8-year-old daughter and her 9-year-old friend said in court that DNA evidence from semen excluded him as the perpetrator, the Lake prosecutor had another explanation. Never let scientific facts stand in the way of a conviction. Illinois. At last, former Chicago Police Lt. Jon Burge has been arrested. Burge or police officers who were under his command systematically tortured suspects to get confessions. The torture included suffocation, burns, electric shocks to the genitals, heads slammed with phone books and "games" of Russian roulette. But it's too late to charge Burge with torturing people. He's charged with lying about the torture. Cook County Judge Dennis Dernbach is the last remaining defendant in the multi-million dollar lawsuits that four alleged torture victims brought against the city and county. The lawsuits claim murder confessions were coerced by former Chicago Police Cmdr. Jon Burge and his officers. He is being sued by Leroy Orange, a Death Row inmate who was pardoned and freed from prison by Gov. George Ryan in 2003. Orange accuses Dernbach, who was an assistant Cook County state's attorney at the time, of coaching Orange's confession. Orange also claims he told Dernbach he was tortured. Last man standing. It doesn't get much more ironic. On the same day Jon Burge was arrested, former Cook County Judge Thomas Maloney died. He was the first—and remains the only—Cook County judge to be convicted of rigging murder cases for cash when he was found guilty in April 1993 of taking thousands of dollars to fix three separate murder trials and a fourth felony case. Not so tough on crime. California. Contending that a top local prosecutor repeatedly sought to subvert justice, the state bar is recommending that Ben Field be suspended from practicing law for three years — a punishment that would represent an unheard of public discipline against a Santa Clara County deputy district attorney. Defense lawyer Jamie Harmon is facing trial in late October, 2008 on a 20-count state bar complaint, accusing her of neglecting the cases of some criminal defendants and misrepresenting what would happen to other clients if they pleaded guilty without going to trial. And the 6th District Court of Appeals has overturned several convictions in recent months after finding errors by Santa Clara County judges in their conduct of cases — including four cases in the past six months that were presided over by Judge Paul Bernal. Held accountable in Northern California. UPDATE: A California State Bar Court appellate panel has upheld a four-year suspension for former Santa Clara County prosecutor Benjamin Field, despite an amicus curiae brief from the California District Attorneys Association warning of a chilling effect on prosecutions. Not Dissuaded. Maryland. In at least nine homicide, sex assault and burglary cases, Baltimore police detectives instructed crime lab technicians not to follow up on convicted criminals' DNA found on evidence at crime scenes because they determined it was not relevant to their investigations. How tunnelvision works. North Carolina. An all-white jury in Concord, NC convicted Ronnie Long of the rape of a prominent white widow -- the wife of a Cannon Mills executive -- in 1976, a crime Ronnie has always denied committing. His conviction was based on the victim's eyewitness identification of Ronnie. Now staff and attorneys with the NC Center on Actual Innocence have uncovered laboratory evidence that clears Ronnie -- evidence the state had all along and hid from Ronnie's defense for 32 years. The state cheated to keep a rapist free. Maryland. Baltimore crime analysts have been contaminating evidence with their own DNA -- a revelation that led to the dismissal of the city Police Department's crime lab director and prompted questions from defense attorneys and forensic experts about the professionalism of the state's biggest and busiest crime lab. Baltimore police are talking out of both sides of their mouths, saying, 'Oh, it's not a problem at all,' and on the other hand they have fired the crime lab director. How did this lab get accreditation? California. In Bakersfield, the crime lab is part of the DA's office. There is no "firewall" between the prosecution side and the science side of the office. This creates a conflict that recently moved prosecutor Nick Lackie to tell a jury, "So what?" This conflict issue has come to a head in a recent case in which a lawyer, Daniel Willsey, stands charged with causing the death of Joe Hudnall, a local deputy by driving under the influence of methamphetamine and causing Hudnall to crash. Defense attorneys have learned that testing of the defendant's blood was conducted by a lab analyst who is a close friend of the dead deputy's family. Cops in lab coats. But wait -- there's more. When Daniel Willsey's defense attorneys went back to court to argue motions related to mishandling evidence by the DA office's crime lab, everyone got a big surprise. The crime lab had "inadvertently" destroyed the sample of Willsey's blood that the lab claimed tested positive for methamphetamines. Gosh, it's not like the DA wanted to make sure Willsey's defense attorneys can't have a private lab test the sample. Ooops -- Butterfingers. Maryland. Raymond Jonassen, of Glen Burnie, Maryland, spent four months in jail based on information that turned out to be false. In charging documents related to a burglary from earlier in 2008, county police Detective Tate, wrote in an application for arrest warrant that Raymond H. Jonassen's fingerprints matched a set discovered at the crime scene. In fact, there was no match, and the county crime lab never indicated a match. It took another two weeks to dismiss the charge against Raymond. Neither the county police nor the chief prosecutor see a problem in what happened. Business as usual. Prince Edward Island, Canada. In 1989, prosecutors wedged Anthony Hanemaayer between a rock and a hard place, convincing that despite his innocence, he needed to plead guilty to a rape he did not commit in order to avoid spending the rest of his life in prison. He took the deal, spent 2 years in prison, and has endured the stigma of a rapist since then. And when notorious rapist/killer Paul Bernardo confessed to police and prosecutors in 2006 that he, not Anthony, had committed the crime, they didn't bother to tell Anthony. Defense counsel in another case stumbled on it. Illinois: In 1995, Alan Beaman of Normal, IL was convicted of murdering his former girlfriend, Jennifer Lockmiller, in 1993. The prosecutor, James Souk, didn't tell the jury about evidence that showed Alan was 140 miles away when Jennifer died, or that forensic evidence linked another man, not Alan, to the murder scene. Thirteen years later, the Illinois Supreme Court has reversed Alan's conviction, calling the evidence against him "tenuous." James Souk was rewarded for his misconduct in the usual way -- he's a judge now. The current county prosecutor, Bill Yoder, says he is "saddened for the family of Jennifer Lockmiller." Apparently Mr. Yoder thinks it is okay to let a killer go free, so long as somebody does the time. Career advancement at its typical Ohio: In 1998, when he was 12 years old, Anthony Harris of New Philadelphia, OH was subjected to a brutal interrogation, then charged and convicted of the murder of Devan Duniver, who lived near Anthony. Two years later, an Ohio appeals court threw out the conviction, ruling that the interrogation was so coercive that Harris "had no choice but … to confess." Prosecutor Amanda Spies got mad and got even; when Anthony tried to enlist in the Marines, she told military officials he was a murderer. But vindictive conduct is not protected conduct. The 6th US Circuit Court has ruled that Anthony can sue the prosecutor. Nevada: Roundly denouncing a Las Vegas federal prosecutor for withholding 650 pages of evidence potentially helpful to two lawyers charged in a stock fraud case, the 9th U.S. Circuit Court of Appeals upheld dismissal of all 64 charges and refused to allow a retrial. The Justice Department's Office of Professional Responsibility, not surprisingly, cleared Assistant U.S. Attorney J. Greg Damm of any misconduct, and did so without contacting defense attorneys. Conduct in flagrant disregard of the United States Constitution Texas: The Dallas County district attorney who has built a national reputation on freeing the wrongfully convicted says prosecutors who intentionally withhold evidence should themselves face harsh sanctions – possibly even jail time. "Something should be done," said Craig Watkins, whose jurisdiction leads the nation in the number of DNA exonerations. "If the harm is a great harm, yes, it should be criminalized." Punish Unethical Prosecutors Mississippi: The exonerations of Kennedy Brewer and Levon Brooks exposed the corrupt underbelly of rural and sparsely populated Noxubee County. But the corruption isn't limited to small towns with little outside oversight. Take a look at Jackson, where judges take money from prosecutors to guarantee "justice" and consider exonerations bad publicity. The Mississippi system. Ohio: A judge dismissed aggravated murder charges against Arian S. O'Connor after Summit County prosecutors asserted that Youngstown police ''compromised'' ballistic evidence in the 2002 slaying for which O'Connor was charged. When they say "compromised," they mean "planted" evidence. That's fraud. Pennsylvania: It took a Fayette County, PA jury just 25 minutes to figure out Bret Shallenberger was innocent of hiring a former employee to burn down Shallenberger's profitable business. It's the local prosecutor, who promised the actual arsonist immunity in exchange for framing Shallenberger, who should be on trial. Wrong Defendant North Carolina: A day after Glen Edward Chapman was freed from death row, the State Bureau of Investigation agreed to review allegations of perjury and obstruction of justice against Dennis Rhoney. The former Hickory police detective led the 1992 double-murder investigation that resulted in Chapman's convictions. Ex-Cop Who Led Discredited Case Probed California: A federal appeals court removed a controversial judge, U.S. District Judge Manuel L. Real of Los Angeles, from another case, accusing him this time of "excessive and biased interventions" that denied two defendants a fair trial. Biased Judge California: The Orange County case against James Ochoa for robbing three restaurant workers was tainted at every level: police misconduct in manipulating the victims' identification of James and misrepresenting the responses of a police tracking dog; efforts by the DA's office to bully crime lab scientists into lying about the DNA exclusion of James as the robber; and the inexcusable conduct of Judge Robert Fitzgerald in extorting a guilty plea from James by threatening him with life in prison. In a rare series of real-time reports about the prosecution of James Ochoa, R. Scott Moxley told readers of the Orange County Weekly exactly which public servants were perverting justice and how they were doing it. As you read these, keep in mind that for the police, prosecutors and judge, business goes on as usual. Moreover, the DA is starting up his own crime lab, so he won't have to put up with scientists who refuse to lie about their findings.
Also see how the California Attorney General played games with James Ochoa's compensation: Making a Chew Toy of Justice Alabama and the U.S.: Don Siegelman, former Democratic Governor of Alabama, has a lot in common with Georgia Thompson. Both were prosecuted for acts that were not crimes, by politically motivated U.S. Attorneys, at the behest of vengeful politicos highly placed in the Bush administration. The Seventh Circuit Court of Appeals tossed Thompson's conviction at the conclusion of oral argument, ordering her immediate release from prison. It has taken longer, but the foundation of lies and corruption underlying Siegelman's conviction is starting to crumble. Sadly, Bush and his cronies have turned the U.S. Department of Justice into a cadre of political operatives. Justice in Amerika. South Dakota: Start with a 20-year-old cold case, two missing teenagers, and call their disappearance murder. Pick a suspect, a rapist serving a long prison term. Use a state psychologist to "help" the suspect's sister come up with "recovered memories" of seeing the missing teens at her family's farm. Recruit a seasoned snitch to get a confession on tape. Voila! You've got a conviction -- almost. Then someone noticed it wasn't the suspect's voice on the taped confession ... Texas: After he was snared in a net of swirling controversies including an e-mail scandal and the high-profile indictment of a sitting Supreme Court justice followed by an immediate move to dismiss that case, Harris County (Houston), Texas, District Attorney Chuck Rosenthal resigned from office. It was a stunning reversal of fortunes. In a press release, Rosenthal said prescription drugs had impaired his judgment. But it was what happened inside a southeast Houston home six years earlier that led to events in a federal courtroom and to Rosenthal's resignation. Erik and Sean Ibarra -- the power of common men. Mississippi: The Innocence Project has asked the state to fill the long-vacant position of State Medical Examiner, and to stop using state pathologist Dr. Steven Hayne. Dr. Hayne's work lies at the heart of the wrongful convictions of Kennedy Brewer and Levon Brooks. His credentials and the results of his work have been solidly discredited for several years, but he is under no oversight because the State Medical Examiner position has been vacant for more than a decade. How many more wrongful convictions before the state acts responsibly? But Dr. Steven Hayne is only half of the despicable duo. Forensic odontologist Dr. Michael West found "bite marks" no one else could see on the bodies of the little victims in both cases, and in both cases, testified that Kennedy Brewer and Levon Brooks were each guilty. "If you fabricate evidence in a capital murder case, where you know that if the person's convicted they are going to be executed -- as far as I'm concerned that's the crime of attempted murder,'' says Peter Neufeld. "He's a criminal." Massachusetts: Stephan Cowans spent nearly seven of his 37 years of life behind bars, locked up for a crime he did not commit. Exonerated in January 2004, Cowans sued and ultimately received a $3.2 million settlement from the city of Boston in 2006. This past October (2007), he was shot dead in his Randolph home. Cowans never learned how, or why, he came to be blamed for the non-fatal shooting of Boston police officer Gregory Gallagher in 1997. Now, the Boston Phoenix has uncovered substantial new information about the Cowans case. These revelations are troubling, as they suggest that key members of the Boston Police Department (BPD) knew that Cowans was innocent, even as they forged the case to prosecute him. Incompetent--or Corrupt? New York: New York state investigators are probing how police and prosecutors handled the 1988 bludgeoning and stabbing deaths of Seymour and Arlene Tankleff, whose son, Marty Tankleff, served 17 years in prison for their murders before being released in December, 2007. What Took So Long? New York: A teen shooting suspect's quick decision to record his interrogation with a hidden MP3 device has played out as a perjury case against a veteran detective. Testifying at the trial of Erik Crespo in April, Detective Christopher Perino, 42, emphatically stated that he hadn't questioned the then-17-year-old about a Christmas Day 2005 shooting in The Bronx before the kid's mother and aunt showed up at the 44th Precinct station. But Crespo had secretly pressed record on his MP3 player - a small device used to download music from the Internet - hidden in his pocket and captured the bullying interrogation. "Testilying" vs. Tape.
Hawaii: A hard-won victory for the common man: Pinkerton v. KPD (Link) Arizona: In a breathtaking abuse of the United States Constitution, Sheriff Joe Arpaio, Maricopa County Attorney Andrew Thomas, and special prosecutor Dennis Wilenchik, used the grand jury to subpoena "all documents related to articles and other content published by Phoenix New Times newspaper in print and on the Phoenix New Times website, regarding Sheriff Joe Arpaio from January 1, 2004 to the present." More alarming still, Arpaio, Thomas, and Wilenchik subpoenaed detailed information on anyone who has looked at the New Times Web site since 2004. Taking a Sledgehammer to the Constitution Within hours of the Phoenix New Times blowing the whistle on Sheriff Arpaio, County Attorney Thomas and special prosecutor Wilenchik, the two top executives of the newspaper were arrested. By the next day, public outcry was such that the charges were dropped and Wilenchik was fired. Which leads to our question: Why are Sheriff Arpaio and County Attorney Thomas still in office? North Carolina: A Durham, NC judge on October 8, 2007 dismissed murder and robbery charges first filed in 1993 against a mentally retarded defendant, ordering his release from a state hospital after 14 years in custody without a trial. Floyd Brown, a 43-year-old Anson County man with an IQ of 50, was charged in the robbery and beating death of 80-year-old Katherine Lynch in 1993. He was found at the time to be incompetent to stand trial, and has remained in state custody at Dorothea Dix Hospital ever since as prosecutors refused to drop the case against him. (Hey, wasn't Mike Nifong the Durham County DA?) The System Failed Him at Every Level. Canada: The Supreme Court of Canada, in a 6-3 decision, has broken new legal ground by ruling suspects can sue police investigators for negligence in cases of shoddy detective work. In a judgment that said police officers are not immune from civil liability, the court set its eyes squarely on combating wrongful convictions and institutional racism, requiring police to face the same legal consequences as other professionals who fail in their public duties. Ruling Applies Across Canada. Illinois: Not since club-swinging cops in baby-blue helmets chased demonstrators through clouds of pepper gas at the 1968 Democratic National Convention have Chicago police been so awash in trouble. Federal prosecutors have charged special operations officer Jerome Finnigan with planning the murder of another member of the unit to keep him from talking to the government. U.S. Attorney Patrick J. Fitzgerald has announced the federal government was stepping into the torture case, saying it would seek evidence of "perjury, false statements and obstruction of justice by members of the Chicago police department." It's political, it's cultural, it's systemic. Wisconsin: Award-winning journalist Dee Hall of Madison, WI's Wisconsin State Journal has filed a stunning series on the prosecutorial misconduct of Dane County Asst. DA Paul Humphrey, as well as the response -- or lack of response -- of Wisconsin's Office of Lawyer Regulation to Humphrey's conduct in particular and prosecutorial misconduct in general.
A 1999 Classic - and Nothing has Changed
UPDATE: 9/22/07 - Ingham County DA Stuart Dunnings, III has joined Claude McCollum's lawyer in asking the Michigan Court of Appeals to grant Claude a new trial. According to the joint motion, Lansing Community College Police turned over a videotape which apparently showed that Claude was somewhere else on campus at the time of Carolyn Kronenburg's murder. Dunnings said if he knew in 2005 what he knows now, he would still prosecute Claude. Why wasn't the videotape turned over before trial? UPDATE: 9/24/07 - The Michigan Court of Appeals has granted Claude McCollum a new trial. UPDATE: 10/16/07 - Claude McCollum released on bail. State says he poses no danger to public. Translation: He's innocent. UPDATE: 10/24/07 - Charges against McCollum dismissed Pennsylvania: Sometimes justice happens in spite of the justice system. Sometimes it only happens when the people in the justice system get their noses rubbed in their messes. On 9/11/07, Lancaster County District Attorney Donald R. Totaro did the right thing by freeing Charles T. "Ted" Dubbs from a 12- to 40-year prison term in two sexual attacks he probably did not commit. Dubbs was sentenced in May 2002. Wilbur Cyrus Brown, a serial rapist who confessed to 13 other rapes, including one on the same jogging trail where Dubbs supposedly committed his crimes, confessed to those attacks in November. But Totaro had to spin things to portray his office as a well-oiled machine that immediately turned to fix an honest error when it came to their attention. That's not what happened. Wisconsin: In a three-year span, Milwaukee Police Department Sgt. Jason Mucha was accused at least 10 times of beating suspects, planting drugs or both - claims so similar that judges took notice. Mucha's record shows how an individual can be the subject of numerous misconduct allegations and continue to advance his career inside a department that lacks a reliable way to track problematic behavior. His story also shows how a single officer was instrumental in changing the way Wisconsin courts consider claims of police misconduct. Forceful Impact Mississippi: Kennedy Brewer of Macon, Mississippi, a mildly retarded, Black defendant, was convicted of raping and killing a 3-year-old girl and sentenced to death in 1992. In 2002, he was cleared by DNA, but he wasn't released. He has spent the past 5 years in the local jail, awaiting retrial. Because you can bet, the local authorities plan to get another conviction and another death sentence. The Sheriff says he can't look for a DNA match because Mississippi doesn't have a DNA database -- which is news to the state's crime lab director. The prosecutor will bring back his star witness, dentist Dr. Michael West, whose bite mark testimony has been disproven by DNA in other cases, and who resigned from professional forensic dentistry groups to avoid expulsion. Prosecutors are so sure they're right about Kennedy's guilt that they're Willing to Bet His Life on It. UPDATE: 2/9/08 - Kennedy Brewer and Levon Brooks, both convicted of killing 3-year-old girls in Noxubee County, Mississippi, and both cleared by DNA, are slated to be released. What did it take to reach this point? Mississippi Attorney General Jim Hood had to take the prosecutions of these murders away from the Noxubee County DA, something almost unheard of in the state's history. The Attorney General has charged Albert Johnson with the murders of both children. California: A coalition of national nonprofit groups has asked the Justice Department to investigate and suspend FBI employee Danny Miller, who was found by a jury to have falsified evidence against Herman Atkins, a man who served 12 years in prison before being exonerated by DNA evidence. Miller is in a position to continue doing harm to the innocent. Wisconsin: Wisconsin Dept. of Justice special agent Greg Eggum put away a lot of people during the time he worked as an arson investigator for the state. It was the means he sometimes used that caused the problems -- forensic fraud, hiding and tampering with evidence, committing perjury -- and state agencies that should have investigated his conduct refused to do so. In 2006, Milwaukee investigative consultant Ira Robins asked the state supreme court to appoint a special prosecutor to investigate Eggum's conduct. The state high court instead converted Robins' petition to an appeal in John Maloney's criminal case and dismissed it. Robins is back with a federal lawsuit detailing Eggum's misconduct and asking for a federal investigation. Click HERE to read the Complaint (pdf format). Ohio. Lee Lucas has had an extraordinary career as a DEA agent in Miami, in Bolivia, and now in his hometown of Cleveland. He's gotten a lot of convictions, but with "issues" like evidence tampering, beating informants, suborning perjury and lying under oath himself. Lucas dodged all the investigative bullets, until May of 2007. That's when one of his informants, Jerrell Bray, told federal public defenders: "I could fill a room with the innocent people I've helped Lucas put away." Jerrell Bray said he wanted to come clean. But would anyone believe him? Joshawa Webb won't answer the door. Joe Ward won't leave his room. Lowestco Ballard's wife had a miscarriage. And Geneva France is a ghost. Collateral damage when police become criminals. Wisconsin. A judge on July 25, 2007 threw out an Oshkosh man 's 1995 conviction for threatening to kill disgraced former Winnebago County District Attorney Joseph Paulus after authorities agreed that a prosecutor withheld important evidence and solicited false testimony from a key witness. The prosecution of the case by former Outagamie County District Attorney Vince Biskupic "is an example of really egregious conduct " by a prosecutor, said an attorney for the man, Mark Price. Vindication. United States. The power, if not the arrogance, of prosecutors grated on Angela Davis throughout her 12 years at the D.C. Public Defender Service, three as its director. Now a law professor at American University, she has made a mission of exposing that power--on radio and TV and in a new book, Arbitrary Justice--with hopes of reining it in. Her beef is not so much with prosecutors breaking the rules, although plenty do. Davis' greater worry is all the behavior considered within bounds but outside any reasonable notion of fair play. Abuse at the early stages. Massachusetts. In what appears to be the largest sum of money ever awarded to people who were wrongfully convicted, a judge today ordered the federal government to pay $101.8 million to make amends for framing four men for a murder they did not commit. Two of the men died in prison after being falsely convicted in the 1965 gangland murder. Another, Peter Limone, spent 33 years in jail before he was exonerated in 2001. The fourth, Joseph Salvati, spent 29 years in prison. Justice -- Better Late than Never. Colorado. Somewhere between the spot Peggy Hettrick was abducted and the Fort Collins field where her partially clad body was dumped, her killer would have shed pieces of himself, mothlike. As he pulled her through the grass that dark morning on Feb. 11, 1987, his skin cells could have sloughed off onto her black coat. A strand of his hair could have hooked onto her shoes. A sneeze could have dampened her blouse. This is the law of forensic science: When two people come into contact, they leave cells on each other. But in the Hettrick murder case, authorities strayed from this law by losing some of these biological relics and destroying evidence linked to a prominent doctor they never investigated for the crime. In doing so, they may have covered the killer's genetic tracks. This happened in Fort Collins, where a detective clung to his belief that a 15-year-old boy committed the crime, despite no physical evidence. In a county where prosecutors opposed saving DNA, let alone testing it. In a state where the law doesn't create a duty to preserve forensic evidence. The result: An innocent man goes to prison for life, and the real killer moves on. Tim Masters is the innocent man. UPDATE: January 3, 2008: Innocence Bid Gets Boost. Fort Collins, CO authorities violated evidence-discovery rules when they withheld expert opinions that conflicted with their theory that a 15-year-old Tim Masters murdered Peggy Hettrick in 1987, according to special prosecutors. UPDATE: January 22, 2008: Tim Masters released and his conviction vacated. DNA excludes Masters and points to another suspect. UPDATE: September 9, 2008: Prosecutors in Tim Masters case get public censure for their misconduct. Both Terry Gilmore and Jolene Blair are judges now, and this isn't Gilmore's first censure for prosecutor misconduct. Nonetheless, they are expected to be easily re-elected in 2010 -- assuming anyone runs against either of them -- because the public has such a short span of attention, and the voters don't really care. UPDATE: July 30, 2010: Murder conviction was built on cop's lies. Lt. Jim Broderick, one of the lead investigators in the case against Masters, appeared before specially appointed Judge James Hartmann in a hearing that lasted about 12 minutes. Broderick listened to the perjury charges against him but waived his right to hear a formal reading of the indictment. He did not enter a plea. He is scheduled to be back in court for a status conference September 28, 2010. Massachusetts Chief US District Judge Mark L. Wolf, in a rare rebuke to the US Justice Department, has asked the Massachusetts Board of Bar Overseers to launch disciplinary proceedings against a veteran federal prosecutor, Jeffrey Auerhahn, who withheld key evidence in a New England Mafia case from the early 1990s. His Victim Wants Auerhahn Disbarred. Click HERE for the back story. Manitoba, Canada There has been intense scrutiny of cases handled by George Dangerfield, who until his retirement was considered the most formidable prosecutor toiling for Manitoba Justice. Since his retirement, however, he has been dogged by allegations that some of his most famous cases were miscarriages of justice. He was at the helm of two confirmed wrongful convictions: James Driskell and Thomas Sophonow. In both cases, judicial inquiries determined that Dangerfield committed errors, and failed in his duty to disclose relevant evidence to the defence. The Hon. Roger Salhany, former justice of the Ontario Court, has been retained to review the cases of former top Manitoba prosecutor George Dangerfield. Prosecutorial Misconduct Knows No Borders Michigan After a house burned down on Bay-Arenac County Line Road near Bay City, MI, Pinconning-Fraser Fire officials called Michigan State Police fire investigator Jeffrey Wallace to the scene. They suspected arson, they told him. And when Wallace showed up with his arson dog named Cops and produced evidence that accelerants fueled the blaze, they had all the evidence needed to bring charges - against Wallace. That's because local firefighters intentionally ignited the abandoned structure - without using any accelerant - in a ''sting'' on Wallace executed in conjunction with Michigan State Police and other agencies. Faking Your Way to Glory. Wisconsin: The trend of prosecuting non-criminal conduct has spread from New York, where former U.S. Attorney Rudy Giuliani initiated it, to the heartland. In Wisconsin, Georgia Thompson was a civil service employee when she was convicted of fraud, after being accused of steering a state travel contract to a firm whose top officials were major campaign contributors to Gov. Doyle. Never mind that she knew nothing about the campaign contributions and was just trying to save the state money. In a stunning and extremely rare move, a 3-judge panel of the 7th Circuit Court of Appeals acquitted Thompson at the conclusion of oral arguments on April 5, 2007, and ordered her immediate release from prison. Not a politically motivated prosecution? Not a thinly veiled attempt by U.S. Attorney Steve Biskupic to wound a sitting (Democrat) governor in the heat of an election? If not, then why was Thompson repeatedly offered deals, even after she was convicted, if she would "talk about higher-ups." Of course it was. And an innocent woman was Caught in a Political Squeeze Play. UPDATE: 9/12/07 - The federal case against Georgia Thompson is long dead, and she is back to work in her state job. But questions about the feds' failed prosecution of Thompson just won't go away. And with good reason. Questions on Thompson case won't quit. from Liestoppers Blog "An amazing performance of journalism on the fly."  Click the "ad" for details. Wisconsin: Prosecutors retrying a 1980 murder charge against Ralph Armstrong in Madison, WI cannot use the results of a DNA test on a key piece of evidence because the results were obtained in violation of a court order, a judge has ruled. Dane County Circuit Judge Daniel Moeser said the state acted in "bad faith" when it went ahead with the testing without notifying the defense and, in the process, used up the material - in violation of the judge's order. Bad Faith. UPDATE - 4/25/08: Now we know why the state violated a court order to test -- and use up -- key evidence. The state, and specifically, Assistant DA John Norsetter, has known for 13 years that Ralph Armstrong's brother confessed to the crime of which Ralph was convicted. Norsetter, who retired from the office last year, allegedly not only failed to investigate or notify Armstrong's defense attorneys of this confession, he subsequently ordered a test that destroyed evidence that could have established Steve Armstrong's guilt. Worse Than Bad Faith North Carolina: Durham County DA Mike Nifong has made himself the national poster boy for prosecutorial misconduct by his handling of rape allegations against Duke University lacrosse players. Nifong made inflammatory comments about the accused to the media, withheld exculpatory evidence, and continued to pursue convictions long after it was obvious the defendants are innocent. Why did he do it? He was running for election, and as Nifong himself said, 'I'm getting a million dollars of free advertisements.' Texas: In deciding Ex Parte James S. Masonheimer, the Texas Court of Criminal Appeals found that Taylor County prosecutors (including now Judge Robert Harper) intentionally withheld exculpatory evidence with the specific intent to avoid an acquittal on three separate occasions. The CCA granted Mr. Masonheimer double jeopardy relief stating this prosecutorial misconduct met the Oregon v. Kennedy standard. Third Trial Barred. New York: Bruce Mason was convicted of arson and other charges in a federal bench trial in Binghamton, New York before the Hon. Thomas J. McAvoy. Although government and insurance fire investigators found no evidence of arson at the fire scene (i.e., no accelerant, no incendiary device), the record shows these experts devised a physically impossible arson scenario, and ignored, destroyed, suppressed, or lied about evidence which disproved it. When this wasn't enough to win the conviction, authorities fabricated a witness. Link: Bruce Mason Texas: The Dallas County, TX district attorney's office has acknowledged that prosecutors illegally withheld evidence that might have saved a man from a 1983 rape conviction and 10 years in prison. Newly discovered evidence amassed by attorneys for James Curtis Giles "strongly suggests" that he was misidentified as one of three men involved in the gang rape, prosecutors said. They said his conviction should be overturned, but stopped short of declaring Mr. Giles innocent. Instead, they asked state District Judge Robert Francis for additional time to investigate Mr. Giles' claim that a man with a nearly identical name was the true rapist. What's in a Name? Similar: Kerry Sanders was whisked from Los Angeles, CA to prison in Stormville, NY when he was mistaken for fugitive Robert Sanders. For 2 years, no one would listen when he insisted, "My Name is Not Robert." New York: Following a "trend" begun by former US Attorney (now a presidential hopeful) Rudy Giuliani, criminalizing non-criminal conduct, US Attorney for the Southern District of New York Michael J. Garcia went after David Finnerty and 14 other NY Stock Exchange floor specialists for "interpositioning." Interpositioning means that instead of matching pending buy and sell orders, the specialists repeatedly trade for their company's proprietary account, making a profit from the slight differences in pricing. The government said Finnerty cheated customers out of $4.5 million. Judge Denny Chin overturned a jury's guilty verdict, however, concluding that no one was defrauded of any money and that interpositioning is not a crime. A Page from The Tyranny of Good Intentions Minnesota: Minnesota prosecutors, the people accustomed to dishing out punishment, have found themselves on the receiving end of two recent state Supreme Court decisions that targeted improper closing arguments and other out-of-bounds trial behavior. Prosecutors are bristling over the decisions, but many defense lawyers and legal experts think it's about time that courts stop warning prosecutors about misconduct and start doing something to stop it. Crackdown on Prosecutor Misconduct Nebraska: Matt Livers of Murdoch, Nebraska, the latest false confessor to a murder, was set free after evidence that two other persons committed the crime surfaced. The State's own expert agreed with the findings of the defense expert that Livers was mentally retarded, vulnerable to the tactics used by the police, and the confession was almost certainly false. Still to be explained are findings in the car police said Matt drove the night of the murders. Interestingly, no DNA is found in the car on first inspection. It is only on second inspection, using a wet swab, that the DNA is found, in the only area searched. Meet Matt Livers. Vermont: In Burlington, VT, District Court Judge Michael Kupersmith has had it with police who violate suspects' rights willingly and repeatedly by ignoring the precept of reciting a Miranda warning. "It's unfortunate that in this country there are people who believe that the rules do not apply to the executive branch, and they do; and the courts are here to enforce that," says Judge Kupersmith. "At least," he continued, his voice rising, "these courts are." Sidestepping Miranda. California: A Huntington Beach police officer's exoneration for planting a loaded gun in a suspect's car has led to the revelation that police routinely plant evidence in unsuspecting civilians' vehicles for training exercises. Police admit planting evidence. Illinois: In Chicago in 1997, June Siler mistakenly identified Robert Wilson as the man who slashed her wish a razor blade, after viewing a suggestive photo line up and being told he had confessed. This is a chilling reminder of how easy it is for police and prosecutors to manipulate a witness' testimony. Now, June says, "I have to make this right." Michigan: It took egregious misconduct by both police and prosecutors to hold together a case against teacher James Perry long enough for a jury to convict him of molesting 2 kindergarteners in suburban Detroit's Oakland County. Well, it was either deliberate misconduct or these folks really believe that "Harry Potter" and "The Lion King" are "nonerotic pornography." If you need your hair curled, read the following news reports: Lawyer seeks new trial or dismissal of charges North Carolina: The Robeson County District Attorney has had to dismiss 180 drug cases because a state and federal investigation has led to corruption charges against former drug enforcement deputies. Three of those deputies — Roger Taylor, C.T. Strickland and Steven Lovin — have been charged in a 10-count federal indictment. The indictment alleges that they burned two homes and a business, assaulted people, paid informants with drugs, and stole and laundered public money. Power CorruptsConviction in sex case doesn't pass the smell test Judge reviews assault case Judge frees teacher in sex abuse case Perry's jury, too, was railroaded But Wait! Oakland County Prosecutor David Gorcyca is no stranger to prosecutorial misconduct South Carolina: An investigation by The Post and Courier (Charleston) uncovered endemic failures in the state's system for tracking police officers that allow problem cops to keep their badges despite histories of misconduct and even criminal behavior. Systemic Failure New Jersey: Superior Court Judge Wilbur Mathesius thinks two N.J. Supreme Court justices are too prejudiced against him to be objective when they review the 6-month suspension Mathesius caught for, among other things, berating a jury for acquitting a defendant of illegal handgun possession; talking ex parte to jurors in the midst of deliberations in a murder case; making derogatory comments, some in public, about appellate judges; and gratuitous remarks that show bias about cases or defendants. Can't They Take a Joke? Texas: The Bexar County district attorney's investigation into the possibly wrongful execution of Ruben Cantu had barely started early in 2006, but already DA investigators were scoffing at the three witnesses who contend Texas sent an innocent man named Ruben Cantu to his death. The DA denies bias. Ohio: According to appeals court decisions, at least three men could be on death row because Cleveland's former star prosecutor Carmen Marino hid evidence. Three others had murder convictions set aside, one because of what an appeals court called Marino's "highly improper and highly prejudicial" conduct. The others, because he hid key evidence or lied about secret deals with jailed witnesses. Cuyahoga County Common Pleas Judge Daniel Gaul said Marino should be criminally prosecuted for the abuses. How Many Other Marinos are out there? Missouri: Sandra Kemper, a suspect in an alleged arson that took the life of her son, denied nine times that she had anything to do with the fire. Then the St. Louis County police detective resorted to one of the oldest tricks in the book -- he told Kemper that she had failed a lie detector test. Later that day, Kemper admitted that she set the fire to get out from under the burden of being the sole provider to her family and to collect insurance proceeds. But the confession did not fit the facts of the crime, the motive evidence was weak, and Sandra had passed the lie detector test with flying colors. The trial judge declared a mistrial on issues related to the polygraph, and Missouri's high court has now ruled that Sandra cannot be retried. Police Lies Backfired. Florida: Florida correctional officials -- already facing a surge of unwelcome scrutiny in the wake of the forced resignation of former commissioner James Crosby, nine firings of high ranking officials by Crosby's successor, and the release of a videotape showing the fatal beating of a fourteen year old boy -- have been put on notice by former inmate Thomas Craig: I know where the bodies are buried. Payback Time. Wisconsin: Two years after Winnebago County DA Joe Paulus pled guilty to taking bribes to fix cases, his iron-fisted approach is still practiced by local politicos. The Legacy of Joe Paulus Lives On. Get the straight skinny on corruption in the Wisconsin legal system.  Illinois: In 1994, Chicago cops used a "reverse lineup" (in which a suspect is asked to identify his victims), along with threats and physical abuse, to coerce 17-year-old Lafonso Rollins into confessing to the rape of an elderly woman. He was convicted and sentenced to 75 years prison, but he was freed in 2004 when DNA proved his innocence. He sued. Discovery in his civil suit disclosed that the police crime lab had excluded him based on blood type before Rollins was ever tried. Oops. The great teamwork cost the city $9 million. Cops & Crime Lab, Working Together Florida: With the help of testimony from convicted murderer Clarence Zacke, Brevard County prosecutors sent Wilton Dedge to prison for 22 years for a crime he did not commit. In December, 2005, Zacke was sentenced to life in prison for raping his adopted daughter 30 years earlier. Now, Dedge's attorneys are calling for an investigation of the state attorney's office after learning during Zacke's rape trial that the child-rape allegations were the subject of a grand jury investigation before Dedge's trial in 1984. Hidden Dirt, Hidden Deals New York: A former FBI agent helped set up the 1992 shotgun murder of a Brooklyn mobster, a federal civil suit filed by the gangster's widow charges. The agent, Lindley DeVecchio, pulled a surveillance team shortly before the rubout of Nicholas Grancio as a favor to Mafia capo Gregory Scarpa Sr. - DeVecchio's secret informant, the suit contends. It's Nothing Personal; It's Just Business New York: A Long Island, N.Y., judge has been arrested and charged by federal prosecutors with participating in a money laundering and fencing scheme with a suspected organized crime associate. According to a 71-page complaint unsealed Tuesday by the Eastern District of New York U.S. Attorney's Office, Nassau County District Court Judge David Gross helped an undercover Federal Bureau of Investigation agent posing as a stolen diamond trafficker unload merchandise as well as launder about $130,000 in illicit funds. A Cut in the Action Tennessee: Two more former Campbell County sheriff's officers have been sentenced to prison for the beating and torture of a suspected drug dealer. The officers claimed they went to Lester Siler's home to serve a probation violation warrant, but in fact they tortured him, demanding drugs and money. And Siler's wife tape recorded it. Taped Interrogation Illinois: In October, 2004, Kevin Fox of Wilmington, Illinos was arrested following a 14-hour interrogation in which investigators said he confessed to molesting and murdering his 3-year-old daughter Riley in June of the same year. The prosecutor, just days away from a hotly contested re-election bid that he ended up losing, vowed to seek the death penalty. A sheriff's officer called the FBI Lab at Quantico, Virginia in November and told them to stop working on DNA evidence sent there for analysis. Kevin's attorney convinced the new prosecutor to send the evidence to a private lab for testing, and the DNA test results "absolutely" exclude Kevin. Charges that could have led to his execution have been dropped. Riley's killer remains free. Political Overkill UPDATE: 5/28/10 - Riley Fox's killer, identified by DNA as Scott Wayne Eby, has been charged with abducting the 3-year-old from her own bed, raping and murdering her. After putting the Fox family through hell with the bogus charges against Kevin, then losing a $15.5 Million lawsuit for malicious prosecution, Will County Sheriff Paul Kaupas has apologized to the Foxes. Well, sort of. He had a spokesman do it on his behalf. So Little, So Late. Virginia: Cisco A. Olavarria was almost 1,000 miles away when 14-year-old LaBrian Harris was shot dead in South Richmond in the fall of 2004. Eleven days after the Oct. 16 shooting, Richmond police publicly named Olavarria, then 19, as a suspected accomplice in the killing and distributed his driver's license photo to the news media. Early the next month, a special grand jury began meeting over an intensive investigation by Virginia State Police into the killing of Olavarria's older brother, Santanna, by two Richmond police officers the preceding spring. It's Time to Set the Record Straight UPDATE: Patrolman, ex-partner indicted in Santanna Olavarria's murder. California: Kern County DA Ed Jagels put two dozen innocent people behind bars on charges that they molested their own kids -- while ignoring evidence that his friends were throwing orgies with teenage boys. So why is one of America's most reckless prosecutors still in power? Mean Justice's Dirty Secrets Illinois: A lawsuit was predictable in the case of two teenagers who were wrongly charged in the February slaying of a Machesney Park, Illinois man. The lawsuit was brought by mothers of the two youths who were wrongly charged, and it names Winnebago County Sheriff Dick Meyers, his department, detectives and deputies. It's time for Safeguards to Protect Accused Kids. Wisconsin: Suspicions about a 1998 4th offense drunken-driving case dismissed by former prosecutor Brad Priebe have prompted Winnebago County DA Bill Lennon to refer the matter to the state Department of Justice for review of the case. Lennon said he did so in response to "red flags" that appeared as prosecutors prepared a new drunken driving case against the same man, whose 1998 case was dismissed as a result of a motion by Priebe, then a Winnebago County assistant district attorney. Priebe, appointed judge in Outagamie County Circuit Court and running for election in his own right, said he was ordered to dismiss the charge by then-DA Joe Paulus, now in prison for taking bribes to fix cases, and "had no choice". The Paulus Legacy Shines On Click HERE for full coverage of Wisconsin's Joe Paulus bribery scandal, from initial allegations to sentencing. Ohio: Derrick Jamison has been released from Ohio's Death Row. His 1985 murder conviction was overturned by two federal courts, which ruled he was denied a fair trial by prosecutors who withheld evidence that might have cleared him. 119th Innocent Person Released from Death Row USA: The popularity of "CSI: Crime Scene Investigation" and its increasingly numerous progeny has spawned what some folks are calling the "CSI Effect." That is, most people who might end up on a jury know, or think they know, a great deal about forensic science and the kind of evidence needed to solve crimes. All this has been widely noted. What hasn't been noted is how years of cop shows have already formed our background ideas about the criminal justice system. What this suggests is that we ought to be a good deal more suspicious of prosecutorial infallibility than television shows suggest. Cop Show Effect Wisconsin: A Milwaukee police officer has been charged with a criminal civil rights violation for trying to shake down a parolee for money and guns, according to a criminal complaint filed in federal court in Milwaukee. The officer, Ala W. Awadallah, 26, also threatened to plant drugs on the man and to have him sent back to prison, according to an FBI agent's affidavit filed in support of the complaint. If convicted, Awadallah faces a maximum penalty of two years in prison and $200,000 in fines. The Price of Staying Out on Parole One day before Milwaukee cop Ala Awadallah was busted this week by the FBI on charges of shaking down a parolee, he was in the most unlikely of places: Sitting in the witness stand testifying for federal prosecutors in a drug/illegal immigration case. Can you say "appeal"? Illinois: An Illinois State Police lieutenant says he was stopped from investigating the possible involvement of a Downstate businessman in a double homicide because the man had made significant political donations. The lieutenant does not allege wrongdoing by the politician, former Gov. George Ryan, whose campaign fund received the businessman's donations. But he alleges that state police brass were guided by fear of political reprisals, even in an investigation with the highest possible stakes--a death penalty murder case. Demote the Messenger Make no mistake. Nearly 19 years after the fact, this case is now a bigger mess than it's ever been. State police officials are the subject of very serious allegations of misconduct, and the attorney general's office is representing the state police against the man leveling those allegations. Who will step in to clean it up? Wisconsin: Dale Chu's conviction is proof that, in Wisconsin, you can convict someone of arson even when the cause of a fire cannot be determined. All it takes is a win-at-all-costs prosecutor like Vince Biskupic, perjured testimony from state "arson experts", the lies of a paid-off snitch and a dummied-down jury. Fixing It Up The current DA in Winnebago County is conducting a secret John Doe investigation into the conduct of Vince Biskupic and his friend and mentor, Joe Paulus, when they controlled the prosecutor's offices in Winnebago and Outagamie Counties. He calls their actions in the cases they made against Mark Price "an abuse of the justice system of the worst kind." Click HERE for full coverage of Wisconsin's Joe Paulus bribery scandal, from initial allegations to sentencing. Click HERE for full coverage of Wisconsin's Vince Biskupic money-for-leniency scandal. Massachusetts: Eighteen years ago, three Boston-area men were convicted of fatally shooting a Lynnfield couple in the basement of their Main Street home as their two young children slept upstairs, a brazen crime that sent shock waves through the quiet, prosperous suburb. Richard Costa, Dennis Daye, and Michael DeNictolis are each serving two consecutive life sentences without the possibility of parole for the 1985 slaying of Robert Paglia and his wife, Patricia, in a robbery at the couple's house. But now a retired FBI agent says in an affidavit that a former colleague gave false and misleading forensic testimony -- deemed crucial to the prosecution's case -- at the trial. BS Bullet Matching Florida: The Florida Department of Law Enforcement is joining the investigation of Broward Sheriff's Office detectives suspected of falsifying crime reports. Prosecutors recently filed criminal charges against two deputies who are charged with falsifying documents and making up confessions to clear cases in Weston and Southwest Ranches. Dozens more deputies have been informed that they are under investigation or have been asked to give statements to prosecutors. Exceptional Clearance Florida (but could be anywhere in the US): James Faller claimed innocence in a complicated loan fraud from the time he reported it to Florida regulators more than 10 years ago, when he tried to explain it to an FBI Agent, when he was indicted, tried, convicted and sentenced to prison. Along the way he infuriated federal prosecutors by making hundreds of allegations of misconduct at virtually every stage of his prosecution in the $3.6 million fraud because, he claims, they got the wrong guy. They'll Get You if You Tick Them Off UPDATE: Faller's federal lawsuit has made it through the initial (and inevitable) barrage of motions to dismiss and motions for summary judgment. Federal Judge Allows Suit to Stand Illinois --Forwarded Message Attachment-- From: Saved by Windows Internet Explorer 7 Subject: private enity defined - Yahoo! Mail Date: Mon, 24 Jan 2011 11:44:41 -0600
--Forwarded Message Attachment-- From: Saved by Windows Internet Explorer 7 Subject: Sovereign immunity: Information from Answers.com Date: Tue, 29 Mar 2011 17:43:43 -0500 Sovereign immunityOxford Companion to the US Supreme CourtSovereign Immunity A principle with origins in early English common law, declared that the king was immune from suit by his subjects. The rationale for the rule was that since law emanated from the sovereign, he could not be held accountable in courts of his own creation. In practice, however, numerous exceptions to this rule afforded aggrieved parties the opportunity to sue the Crown, especially where the sovereign expressly consented to suit. In the United States, sovereign immunity was used during the nineteenth century to limit suits by individuals against both state and federal governments. The Eleventh Amendment, which was ratified in 1795, prohibited suits against states in federal courts. The highest courts of the states also recognized the doctrine. In Gibbons v. United States (1868), the Supreme Court held that the federal government could not be sued without the consent of Congress. Today, the concept of sovereign immunity is in disfavor. Many states have narrowed the immunity through statutes and judicial decisions. With the adoption of the Federal Tort Claims Act (1946), Congress expressly authorized individuals to sue the federal government for specified claims, subject to various exceptions. This trend evinces a belief that governments should be accountable for losses they occasion. Sovereign immunity has been eroded in an indirect fashion as well. Even where the principle of sovereign immunity bars suit against the government, the injured party may seek damages from individual officials who are personally liable for the judgment. — Philip L. Merkel West's Encyclopedia of American LawThis entry contains information applicable to United States law only. Sovereign Immunity The legal protection that prevents a sovereign state or person from being sued without consent. Sovereign immunity is a judicial doctrine that prevents the government or its political subdivisions, departments, and agencies from being sued without its consent. The doctrine stems from the ancient English principle that the monarch could do no wrong. Suits against the United States In early American history, the courts supported the traditional view that the United States could not be sued without congressional authorization (Chisholm v. Georgia, 2 U.S. [2 Dall.] 419, 478, 1 L. Ed. 440 [1793]; Cohens v. Virginia, 19 U.S. [6 Wheat.] 264, 412, 5 L. Ed. 257 [1821]). This immunity applied to suits filed by states as well as individuals (Kansas v. United States, 204 U.S. 331, 27 S. Ct. 388, 51 L. Ed. 510 [1906]). Thus, for many years, those who had contract and tort claims against the government had no legal recourse except through the difficult, inconvenient, and often tardy means of convincing Congress to pass a special bill awarding compensation to the injured party on a case by case basis. The federal government first began to waive its sovereign immunity in areas of law other than torts. In 1855 Congress established the U.S. Court of Claims, a special court created to hear cases against the United States involving contracts based upon the Constitution, federal statutes, and federal regulations. In 1887 Congress passed the Tucker Act (28 U.S.C.A. §§ 1346 (a) (2), 1491) to authorize federal district courts to hear contractual claims not exceeding $10,000 against the United States. Other special courts were later created for particular types of nontort claims against the federal government. The U.S. Board of General Appraisers was created in 1890 and was replaced in 1926 by the U.S. Customs Court, and the U.S. Court of Customs Appeals was created in 1909 and then replaced in 1926 by the U.S. Court of Customs and Patent Appeals. These courts handled complaints about duties levied on imports. The Board of Tax Appeals, created in 1924 to handle internal revenue complaints, was replaced in 1942 by the Tax Court of the United States. Not until 1946, however, did Congress address the issue of liability for torts committed by the government's agencies, officers, or employees. Until 1946 civil servants could be individually liable for torts, but they were protected by sovereign immunity from liability for tortious acts committed while carrying out their official duties. The courts were not always consistent in making that distinction, however. Finally, in 1946 Congress passed the Tort Claims Act (28 U.S.C.A. §§ 1346(b), 2671-2678), which authorized U.S. district courts to hold the United States liable for torts committed by its agencies, officers, and employees just as the courts would hold individual defendants liable under similar circumstances. This general waiver of immunity had a number of exceptions, however, including the torts of battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, interference with contractual rights, tort in the fiscal operations of the Treasury, tort in the regulation of the monetary system, and tort in combatant activities of the armed forces in wartime. By 1953 the U.S. Supreme Court had drawn distinctions under the Tort Claims Act between tortious acts committed by the government at the planning or policy-making stage and those committed at the operational level. In Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953), the Supreme Court held that the Tort Claims Act did not waive sovereign immunity as to tortious acts committed at the planning stage; immunity applied only to torts committed at the operational stage. Congress also waived sovereign immunity in cases seeking injunctive or other nonmonetary relief against the United States in a 1976 amendment to the Administrative Procedure Act (5 U.S.C.A. §§ 702-703). Suits against the States The doctrine of sovereign immunity applies to state governments within their own states, but it was not initially clear whether states had immunity as to suits involving other states or citizens of other states. In the 1793 case of Chisholm v. Georgia, the U.S. Supreme Court permitted a North Carolina citizen to sue Georgia for property that Georgia had seized during the American Revolution. The states' strong disapproval of the Court's decision in Chisholm led to the prompt adoption of the Eleventh Amendment to the U.S. Constitution in 1795. The Eleventh Amendment specifically grants immunity to the states as to lawsuits by citizens of other states, foreign countries, or citizens of foreign countries in the federal courts. This limitation was judicially extended to include suits by a state's own citizens in Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 (1890). The U.S. Supreme Court still has jurisdiction to hear suits by one state against another. In addition, the courts have construed the Eleventh Amendment as permitting appellate proceedings in cases originally instituted by a state if the defendant asserted rights under the U.S. Constitution, statutes, or treaties (Cohens v. Virginia), or in cases against state officials alleged to have violated such rights (Osborn v. Bank of the United States, 22 U.S. [9 Wheat.] 738, 6 L. Ed. 204 [1824]). The latter category has resulted in extensive litigation in federal courts against state and local officers alleged to have violated the Civil Rights Act of 1871 (42 U.S.C.A. § 1983). Claims brought under the act are not subject to sovereign immunity. In state court actions, immunity continues to be allowed in the absence of consent to be sued. Depending on the type of case, however, different levels of immunity may apply. Absolute immunity is generally allowed for judges and quasi-judicial officers, such as prosecuting attorneys and parole board members. For executive officers, immunity is a function of the amount of discretion they possess to make decisions and the circumstances in which they act (Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 [1974]). But immunity has been denied to officials acting in excess of statutory authority (Greene v. Louisville and Interurban Railroad Co., 244 U.S. 499, 37 S. Ct. 673, 61 L. Ed. 1280 [1917]) or under an unconstitutional statute (Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 [1908]). Immunity has been allowed when state property is involved or the state is an essential party for granting relief (Cunningham v. Macon and Brunswick Railroad Co., 109 U.S. 446, 3 S. Ct. 292, 27 L. Ed. 992 [1883]). Until a Supreme Court decision in 1979, it was generally assumed, and decided by a court in at least one case (Paulus v. South Dakota, 52 N.D. 84, 201 N.W. 867 [1924]), that a state's immunity must be recognized not only in its own courts, but also in the courts of other states throughout the country. The U.S. Supreme Court addressed the issue in Nevada v. Hall, 440 U.S. 410, 99 S. Ct. 1182, 59 L. Ed. 2d 416 (1979). That case involved an employee of the University of Nevada who was driving in California on official business and injured a California resident in an automobile accident. The Supreme Court held that the common-law doctrine of sovereign immunity had not passed to the states when the United States was created and therefore it is up to the states to decide whether to recognize and respect the immunity of other states. Thus, the Supreme Court held in Hall that California could properly refuse to respect Nevada's sovereign immunity in the California courts. Like the federal government, the states often relied on private laws to provide relief to specific individuals who would otherwise be unable to sue due to sovereign immunity doctrines. Recognizing that this was an inefficient and nonuniform way to provide relief from immunity doctrines, the states began to waive all or parts of their immunity from lawsuits. Many states created administrative bodies with limited capacity to settle claims against the state. Several states authorized suits against municipal corporations, counties, and school districts whose officers or employees injured individuals while performing proprietary, but not government, services. The distinction between proprietary and government services proved impossible to apply uniformly. Under modern law government services are widely considered to include police services, fire department services, and public education. Depending on the state involved, streets, sidewalks, bridges, parks, recreational facilities, electricity suppliers, gas suppliers, and airport functions can be considered either government or proprietary services. Most states now have waived their immunity in various degrees at both the state and local government levels. Generally, state supreme courts first abolished immunity via judicial decisions; later, legislative measures were enacted at the state and local level to accept liability for torts committed by civil servants in the performance of government functions. The law still varies by state and locality, however. Suits against Foreign Governments Until the twentieth century, mutual respect for the independence, legal equality, and dignity of all nations was thought to entitle each nation to a broad immunity from the judicial process of other states. This immunity was extended to heads of state, in both their personal and official capacities, and to foreign property. In the 1812 case of The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch.) 116, 3 L. Ed. 287, a ship privately owned by a U.S. citizen was seized in French waters by Napoleon's government and converted into a French warship. When the ship entered the port of Philadelphia, the original owner sought to regain title, but the Supreme Court respected the confiscation of the ship because it occurred in accordance with French law in French waters. With the emergence of socialist and Communist countries after World War I, the traditional rules of sovereignty placed the private companies of free enterprise nations at a competitive disadvantage compared to state-owned companies from socialist and Communist countries, which would plead immunity from lawsuits. European and U.S. businesses that engaged in transactions with such companies began to insist that all contracts waive the sovereign immunity of the state companies. This situation led courts to reconsider the broad immunity and adopt instead a doctrine of restrictive immunity that excluded commercial activity and property. Western European countries began waiving immunity for state commercial enterprises through bilateral or multilateral treaties. In 1952 the U.S. Department of State decided that, in considering future requests for immunity, it would follow the shift from absolute immunity to restrictive immunity. In 1976 Congress passed the Foreign Sovereign Immunities Act (28 U.S.C.A. § 1601 et seq.) to provide foreign nations with immunity from the jurisdiction of U.S. federal and state courts in certain circumstances. This act, which strives to conform to international law, prohibits sovereign immunity with regard to commercial activities of foreign states or their agencies or with regard to property taken by a foreign sovereign in violation of international law. Customary international law has continued to move toward a restrictive doctrine. See: Federal Tort Claims Act; Feres Doctrine; Immunity; Judicial Immunity; Section 1983. Wikipedia on Answers.comSovereign immunity Sovereign immunity, or crown immunity, is a type of immunity that in common law jurisdictions traces its origins from early English law. Generally speaking it is the doctrine that the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution; hence the saying, "the king (or queen) can do no wrong". In many cases, states have waived this immunity to allow for suits; in some cases, an individual may technically appear as defendant on the state's behalf.
In the Middle AgesPope Gelasius I opined on the general principles that underlie sovereign immunity:
In constitutional monarchiesIn a constitutional monarchy the sovereign is the historical origin of the authority which creates the courts. Thus the courts had no power to compel the sovereign to be bound by the courts, as they were created by the sovereign for the protection of his or her subjects.AustraliaThere is no automatic Crown immunity in Australia, although the Crown may be explicitly or implicitly immune from any particular statute. There is a rebuttable presumption that the Crown is not bound by a statute: Bropho v State of Western Australia. The Crown's immunity may also apply to other parties in certain circumstances: see Australian Competition and Consumer Commission v Baxter Healthcare.BelgiumArticle 88 of the Constitution of Belgium states: The King's person is inviolable; his ministers are accountable.[2]DenmarkArticle 13 of the Constitution of Denmark states: The King shall not be answerable for his actions; his person shall be sacrosanct. The Ministers shall be responsible for the conduct of the government; their responsibility shall be determined by Statute.[3] Accordingly the monarch cannot be sued in his or her personal capacity, but this immunity from lawsuits does not extend to the state as such.Holy SeeThe Holy See, of which the current pope is head (often referred to incorrectly as the Vatican or Vatican City State, a distinct entity) claims sovereign immunity for the pope, supported by many international agreements. See pope#International position.MalaysiaIn Malaysia, an amendment to the constitution in 1993 made it possible to bring proceedings against the king or any ruler of a component state in the Special Court. Prior to 1993, rulers, in their personal capacity, were immune from any proceedings brought against them.[4]NigeriaSection 308 of the Nigerian constitution of 1999 provides immunity from court proceedings, i.e., proceedings that will compel their attendance in favour of elected executive officers, namely the President and his vice and the Governors of the states and the deputies. This immunity extends to acts done in their official capacities so that they are not responsible for acts done on behalf of the state. However, this immunity does not extend to acts done in abuse of the powers of their office of which they are liable upon the expiration of their tenure. But does the elected executive constitute the sovereign in Nigeria? it seems that the judiciary will be better described as the sovereign in Nigeria if the sovereign is the person who in the last resort is able to decide his own competence and that of other contender in the event of any conflict of authority. Failing this, the constitution as an expression of the will of Nigerians is the sovereign.It is important to note that the judiciary has absolute immunity for actions decisions taken in their official capacity.NorwayArticle 5 of the Constitution of Norway states: The King's person is sacred; he cannot be censured or accused. The responsibility rests with his Council.[5] Accordingly the monarch cannot be prosecuted or sued in his or her personal capacity, but this immunity does not extend to the state as such.SpainThe Spanish monarch is personally immune from prosecution for acts committed by government ministers in the King's name, according to Title II, Section 56, Subsection 3 of the Spanish Constitution of 1978.[6][7]The Person of the King of Spain is inviolable and shall not be held accountable. His acts shall always be countersigned in the manner established in section 64. Without such countersignature they shall not be valid, except as provided under section 65(2).[6][7] La persona del Rey de España es inviolable y no está sujeta a responsabilidad. Sus actos estarán siempre refrendados en la forma establecida en el artículo 64, careciendo de validez sin dicho refrendo, salvo lo dispuesto en el artículo 65,2.[6][7] Sri LankaBy the Constitution of Sri Lanka, the President of Sri Lanka has sovereign immunity.SwedenArticle 7, Chapter 5, of the Swedish Instrument of Government states: "The King may not be prosecuted for his actions. Nor may a Regent be prosecuted for his actions as Head of State." This only concerns the King as a private person, since he does not appoint the government, nor do any public officials act in his name. It does not concern other members of the Royal Family, except in such cases as they are exercising the office of Regent when the King is unable to serve. It is a disputed matter among Swedish constitutional lawyers whether the article also implies that the King is immune against lawsuits in civil cases, which do not involve prosecution.SingaporeThe President of Singapore does to a certain extent have sovereign immunity subjected to clause 22k(4).[1](See Part V under government regarding the President of Singapore)United KingdomThe position was drastically altered for the United Kingdom by the Crown Proceedings Act 1947 which made the government generally liable, with limited exceptions, in tort and contract. Even before then it was possible to claim against the Crown with the Attorney-General's fiat (i.e., permission) (a petition of right). Alternatively, Crown servants could be sued in place of the Crown, and the Crown as a matter of course paid any sums due. Further, mandamus and prohibition were always available against ministers because they derive from the royal prerogative.However, as of 2011[update] lawsuits against the sovereign in his or her personal and private capacity remain inadmissible in British law. The State Immunity Act 1978 regulates the extent to which foreign states are subject to the jurisdiction of British courts. In IcelandAccording to article 11 of the constitution of Iceland the president is not accountable and cannot be prosecuted without parliament's consent.In ItalyAccording to the Italian Constitution, the President of the Italian Republic is not accountable, and he is not responsible for any act of his office, unless he has committed high treason or attempted to subvert the Constitution. The Italian penal law makes it a criminal offense to give the President responsibility for actions of the Italian Government in public.The Italian Constitutional Court has declared the partial incompatibility with the Italian Constitution of a law that forced courts to delay all trials against the Italian Prime Minister while he is in office. The revised version says that the trial hearings have to be scheduled in agreement between the Judge and the Government In the United StatesMain article: Sovereign immunity in the United States In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party.State sovereign immunityIn Hans v. Louisiana (1890), the Supreme Court of the United States held that the Eleventh Amendment (1775) re-affirms that states possess sovereign immunity and are therefore generally immune from being sued in federal court without their consent. In later cases, the Supreme Court has strengthened state sovereign immunity considerably. In Blatchford v. Native Village of Noatak (1991), the court explained thatIn Alden v. Maine (1999), the Court explained that while it has Writing for the court in Alden, Justice Anthony Kennedy argued that in view of this, and given the limited nature of congressional power delegated by the original unamended Constitution, the court could not "conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers." However, a "consequence of [the] Court's recognition of pre-ratification sovereignty as the source of immunity from suit is that only States and arms of the State possess immunity from suits authorized by federal law." Northern Insurance Company of New York v. Chatham County (2006 emphases added). Thus, cities and municipalities lack sovereign immunity, Jinks v. Richland County (2003), and counties are not generally considered to have sovereign immunity, even when they "exercise a 'slice of state power.'" Lake Country Estates, Inc. v. Tahoe Regional Planning Agency (1979). International lawSovereign immunity is available to countries in international court but if they are acting more as a contracting body (example: making agreements in regards to extracting oil and selling it), then sovereign immunity may not be available to them.Under international law, and subject to some conditions, countries are immune from legal proceedings in another state. This stems from customary international law.[8] The US recognizes this concept under the Foreign Sovereign Immunities Act (1976). See also
References
This entry is from Wikipedia, the leading user-contributed encyclopedia. It may not have been reviewed by professional editors (see full disclaimer) Quick linksCategoriesCan you answer these questions?Recent recommendations--Forwarded Message Attachment--
--Forwarded Message Attachment-- From: Saved by Windows Internet Explorer 7 Subject: Standing (law) - Wikipedia, the free encyclopedia Date: Tue, 29 Mar 2011 16:22:06 -0500 Standing (law)From Wikipedia, the free encyclopedia (Redirected from Standing To Sue)
[edit] CanadaIn Canadian administrative law, whether an individual has standing to bring an application for judicial review, or an appeal from the decision of a tribunal, is governed by the language of the particular statute under which the application or the appeal is brought. Some statutes provide for a narrow right of standing while others provide for a broader right of standing.[1]Frequently a litigant wishes to bring a civil action for a declaratory judgment against a public body or official. This is considered an aspect of administrative law, sometimes with a constitutional dimension, as when the litigant seeks to have legislation declared unconstitutional. [edit] Public interest standingThe Supreme Court of Canada developed the concept of public interest standing in three constitutional cases commonly called "the Standing trilogy": Thorson v. Canada (Attorney General),[2] Nova Scotia Board of Censors v. McNeil,[3] and Minister of Justice v. Borowski.[4] The trilogy was summarized as follows in Canadian Council of Churches v. Canada (Minister of Employment and Immigration):[5]Public-interest standing is also available in non-constitutional cases, as the Court found in Finlay v. Canada (Minister of Finance).[7] [edit] United KingdomIn British administrative law, the applicant needs to have a sufficient interest in the matter to which the application relates.[8] This sufficient interest requirement has been construed liberally by the courts. As Lord Diplock put it:[9]"[i]t would...be a grave lacuna in our system of public law if a pressure group...or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped." [edit] United States
There are a number of requirements that a plaintiff must establish to have standing before a federal court. Some are based on the case or controversy requirement of the judicial power of Article Three of the United States Constitution, § 2, cl.1. As stated there, "The Judicial Power shall extend to all Cases . . .[and] to Controversies . . ." The requirement that a plaintiff have standing to sue is a limit on the role of the judiciary and the law of Article III standing is built on the idea of separation of powers.[11] Federal courts may exercise power only "in the last resort, and as a necessity".[12] The American doctrine of standing is assumed as having begun with the case of Frothingham v. Mellon, 262 U.S. 447 (1923). But, legal standing truly rests its first prudential origins in Fairchild v. Hughes, (1922) which was authored by Justice Brandeis. In Fairchild, a citizen sued the Secretary of State and the Attorney General to challenge the procedures by which the Nineteenth Amendment was ratified. Prior to it the doctrine was that all persons had a right to pursue a private prosecution of a public right.[13] Since then the doctrine has been embedded in judicial rules and some statutes. [edit] Standing requirementsThere are three standing requirements:
[edit] Prudential limitationsAdditionally, there are three major prudential (judicially created) standing principles. Congress can override these principles via statute:
[edit] Recent development of the doctrineIn 1984, the Supreme Court reviewed and further outlined the standing requirements in a major ruling concerning the meaning of the three standing requirements of injury, causation, and redressability.[19]In the suit, parents of black public school children alleged that the Internal Revenue Service was not enforcing standards and procedures that would deny tax-exempt status to racially discriminatory private schools. The Court found that the plaintiffs did not have the standing necessary to bring suit.[20] Although the Court established a significant injury for one of the claims, it found the causation of the injury (the nexus between the defendant's actions and the plaintiff's injuries) to be too attenuated.[21] "The injury alleged was not fairly traceable to the Government conduct respondents challenge as unlawful".[22] In another major standing case, the Supreme Court elaborated on the redressability requirement for standing.[15] The case involved a challenge to a rule promulgated by the Secretary of the Interior interpreting §7 of the Endangered Species Act of 1973 (ESA). The rule rendered §7 of the ESA applicable only to actions within the United States or on the high seas. The Court found that the plaintiffs did not have the standing necessary to bring suit, because no injury had been established.[23] The injury claimed by the plaintiffs was that damage would be caused to certain species of animals and that this in turn injures the plaintiffs by the reduced likelihood that the plaintiffs would see the species in the future. The court insisted though that the plaintiffs had to show how damage to the species would produce imminent injury to the plaintiffs.[24] The Court found that the plaintiffs did not sustain this burden of proof. "The 'injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured".[25] The injury must be imminent and not hypothetical. Beyond failing to show injury, the Court found that the plaintiffs failed to demonstrate the standing requirement of redressability.[26] The Court pointed out that the respondents chose to challenge a more generalized level of Government action, "the invalidation of which would affect all overseas projects".[27] This programmatic approach has "obvious difficulties insofar as proof of causation or redressability is concerned".[27] In a 2000 case, Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765 (2000),[28] the United States Supreme Court endorsed the "partial assignment" approach to qui tam relator standing to sue under the False Claims Act — allowing private individuals to sue on behalf of the U.S. government for injuries suffered solely by the government.[29] [edit] Taxpayer standingThe initial case that established the doctrine of standing, Frothingham v. Mellon, was a taxpayer standing case.Taxpayer standing is the concept that any person who pays taxes should have standing to file a lawsuit against the taxing body if that body allocates funds in a way that the taxpayer feels is improper. The United States Supreme Court has held that taxpayer standing is not a sufficient basis for standing against the United States government, unless the government has allocated funds in a way that violates the Establishment Clause found in the First Amendment of the Constitution.[30] The Court has consistently found that the conduct of the federal government is too far removed from individual taxpayer returns for any injury to the taxpayer to be traced to the use of tax revenues. In DaimlerChrysler Corp. v. Cuno,[31] the Court extended this analysis to state governments as well. However, the Supreme Court has also held that taxpayer standing is "constitutionally" sufficient to sue a municipal government in a federal court. States are also protected against lawsuits by their sovereign immunity. Even where states waive their sovereign immunity, they may nonetheless have their own rules limiting standing against simple taxpayer standing against the state. Furthermore, states have the power to determine what will constitute standing for a litigant to be heard in a state court, and may deny access to the courts premised on taxpayer standing alone. In Florida, a taxpayer has standing to sue if the state government is acting unconstitutionally with respect to public funds, or if government action is causing some special injury to the taxpayer that is not shared by taxpayers in general. In Virginia, the Supreme Court of Virginia has more-or-less adopted a similar rule. An individual taxpayer generally has standing to challenge an act of a city or county where they live, but does not have general standing to challenge state expenditures. [edit] Standing to challenge statutesWith limited exceptions, a party cannot have standing to challenge the constitutionality of a statute unless they will be subjected to the provisions of that statute. Courts will accept First Amendment challenges to a statute on overbreadth grounds, where a person who is only partially affected by a statute can challenge parts that do not affect them on the grounds that laws that restrict speech have a chilling effect on other people's right to free speech.The only other way someone can have standing to challenge the constitutionality of a statute is if the existence of the statute would otherwise deprive them of a right or a privilege even if the statute itself would not apply to them. The Virginia Supreme Court made this point clear in the case of Martin v. Ziherl 607 S.E.2d 367 (Va. 2005). Martin and Ziherl were girlfriend and boyfriend when Martin discovered that Ziherl gave her herpes. She sued him for damages. Because (at the time the case was filed) it was illegal to have sex with someone you're not married to, Martin could not sue Ziherl because joint tortfeasors - those involved in committing a crime - cannot sue each other over acts occurring as a result of a criminal act (Zysk v. Zysk, 404 S.E.2d 721 (Va. 1990)). Martin argued that because of the U.S. Supreme Court decision in Lawrence v. Texas (finding that state's sodomy law unconstitutional), Virginia's anti-fornication law was also unconstitutional for the reasons cited in Lawrence. Martin argued, therefore, she could, in fact, sue Ziherl for damages. Lower courts decided that because the Commonwealth's Attorney doesn't prosecute fornication cases, Martin had no risk of prosecution and thus lacked standing to challenge the statute. Martin appealed. Since Martin has something to lose - the ability to sue Ziherl for damages - if the statute is upheld, she had standing to challenge the constitutionality of the statute. And since the U.S. Supreme Court in Lawrence has found that there is a privacy right in one's private, noncommercial sexual practices, the Virginia Supreme Court decided that the statute against fornication was unconstitutional. The finding gave Martin standing to sue Ziherl since the decision in Zysk is no longer applicable. However, the only reason Martin had standing to challenge the statute was that she had something to lose if it stayed on the books. [edit] State lawState law on standing differs substantially from federal law and varies considerably from state to state.[edit] CaliforniaOn December 29, 2009, the California Court of Appeal for the Sixth District ruled that California Code of Civil Procedure Section 367 cannot be read as imposing a federal-style standing doctrine on California's code pleading system of civil procedure.[32] In California, the fundamental inquiry is always whether the plaintiff has sufficiently pleaded a cause of action, not whether the plaintiff has some entitlement to judicial action separate from proof of the substantive merits of the claim advanced.[32] The court acknowledged that the word "standing" is often sloppily used to refer to what is really jus tertii, and held that jus tertii in state law is not the same thing as the federal standing doctrine.[32][edit] See also[edit] References
[edit] External linksSubject: standing to sue (law) -- Britannica Online Encyclopedia Date: Tue, 29 Mar 2011 16:28:44 -0500 --Forwarded Message Attachment--
--Forwarded Message Attachment-- | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
