Subject: [fathers_in_action] Clarence Thomas -- An Unexpected Hero
Clarence Thomas -- An Unexpected Hero
Silent at so many hearings, Mr. Justice Thomas bravely stood alone recently to speak
out against prosecutorial misconduct. He agrees with the position that a plaintiff
does state a claim under ï¿½1983 when he shows that prosecutorial misconduct in gathering
evidence has led to a deprivation of his liberty.
See MARGARET KELLY MICHAELS v. GEORGE MCGRATH ET AL.,
531 U.S. -- , 121 S.Ct. 873, 148 L.Ed.2d 780, 2001.SCT.0000016 <http://www.versuslaw.com> (2001). An
abridgment without quotation marks and cites follows:
Petitioner Margaret Michaels worked as a teacher's aide in a nursery school in
Maplewood, New Jersey. A physician examined the child but found no evidence of
abuse. A prosecutor and several investigators (respondents) interviewed
virtually all of the children with whom Michaels could have had contact. Employing peer
pressure, making threats, and asking leading or suggestive questions, they obtained
stories of sexual abuse that "ranged from relatively minor accounts of touching to
virtually incomprehensible heinous and bizarre acts." After a 9-month trial
petitioner was convicted of 115 counts and sentenced to 47 years in prison.
After petitioner had served five years of her sentence, a New Jersey appellate court
reversed her conviction on the ground that respondents' investigative techniques were
improper. Even respondents apparently realized that their interrogation
techniques "caused certain children to use their imagination and stray from
reality." The New Jersey Supreme Court held that "the interviews of the
children were highly improper and employed coercive and unduly suggestive
methods." It pointed out that "[t]he interrogations undertaken in the
course of this case utilized most, if not all, of the practices that are disfavored or
condemned by experts, law enforcement authorities and government agencies."
The federal appeals court in New Jersey concluded that although petitioner's due
process rights were violated when the testimony was used at trial, the presentation of
testimony fell squarely within the doctrine of absolute prosecutorial immunity.
In Zahrey v. Coffey, 221 F. 3d 342 (CA2 2000), the Second Circuit took the
position that a plaintiff does state a claim under ï¿½1983 when he shows that prosecutorial
misconduct in gathering evidence has led to a deprivation of his liberty. The intervention
of a subsequent immunized act by the same officer does not break the chain of causation
necessary for liability.
Mr. Justice Clarence Thomas believes that the Second Circuit's
approach is very likely correct, and that the decision below leaves victims of egregious
prosecutorial misconduct without a remedy. In any event, even if he did
not have serious doubt as to the correctness of the decision below, he would grant
certiorari to resolve the conflict among the Courts of Appeals on this important
issue. He respectfully dissented.
In CATHY BURNS v. RICK REED, 500 U.S. 478, 111 S. Ct. 1934, 114 L. Ed. 2d 547,
59 U.S.L.W. 4536 (1991), our esteemed Supreme Court summarized the case law:
Petitioner's challenge to
respondent's participation in the search warrant hearing is similar to the claim in
Briscoe v. LaHue, 460 U.S. 325
(1983). There, the plaintiff's ï¿½ 1983 claim was based on the
allegation that a
officer had given perjured testimony at the plaintiff's criminal trial. In holding
that the officer was
entitled to absolute immunity, we
noted that witnesses were absolutely immune at common law from
subsequent damages liability for
their testimony in judicial proceedings "even if the witness knew the
statements were false and made them
with malice." Id., at 332.
Like witnesses, prosecutors and other lawyers were absolutely immune from damages
liability at common law
false or defamatory statements in judicial proceedings (at least so long as the statements
the proceeding), and also for eliciting false and defamatory testimony from witnesses.
See, e. g.,
Yaselli v. Goff, 12 F.2d 396,
401-402 (CA2 1926), summarily aff'd, 275 U.S. 503 (1927); Youmans v. Smith,
153 N. Y. 214, 219-220 (1897);
Griffith v. Slinkard, 146 Ind. 117, 122, 44 N. E. 1001, 1002 (1896); Marsh v.
Ellsworth, 50 N. Y. 309, 312-313
(1872); Jennings v. Paine, 4 Wis. 358 (1855); Hoar v. Wood, 44 Mass.
(1841). See also King v. Skinner, Lofft 55, 56, 98 Eng. Rep. 529, 530 (K. B. 1772),
Mansfield observed that
"neither party, witness, counsel, jury, or Judge can be put to answer, civilly or
criminally, for words spoken in
Despite all the reasoning favoring the toleration of lying in
court, I, Barbara C. Johnson, personally, find it an obscenity, an intolerable obscenity.
Lying does not promote justice!
Barbara C. Johnson
Attorney at Law
6 Appletree Lane
Andover, MA 01810-4102
False Allegations: http://www.falseallegations.com
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