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Clarence Thomas


From: Barbara C. Johnson

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 �1983 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  <> (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 �1983 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 � 1983 claim was based on the allegation that a
          police 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
          for making false or defamatory statements in judicial proceedings (at least so long as the statements were
          related to 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. 193,
          197-198 (1841). See also King v. Skinner, Lofft 55, 56, 98 Eng. Rep. 529, 530 (K. B. 1772), where Lord
          Mansfield observed that "neither party, witness, counsel, jury, or Judge can be put to answer, civilly or
          criminally, for words spoken in office."

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
[email protected]
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