To my knowledge and based on my personal experiencesyou cannot find any news journalist or public officialwho holds a public office that will acknowledgethese laws on immunities as they currently exist,let alone take a stance and voice their opinionof these laws in a public forum.--Terry Fesler
Immunities and the Law by Terry Fesler
For the purposes of this presentation, and as far as I am concerned, who I am is not essential, or important because the information being provided is independently verifiable for its accuracy.
I am a legal assistant and once managed a law office for an attorney and
as a result of this employment I had access to computer legal research
programs and "legal search engines" I no longer have access to at this time. I saved most of my research on removable disks and have a large
amount of this research for my review while also knowing much of this
research is now outdated anyway.
I have researched immunities and the law quite thoroughly and have been
working on a way to briefly present this to as many people, advocacy
groups, or individuals as I may come into contact with who are willing
to listen, or look at this concept.
My legal experience is primarily with Michigan law and I know that many
laws vary from state to state and procedural issues also vary from court
to court so what is proper in one jurisdiction may be improper in another jurisdiction. This fact must never be overlooked by anyone doing any form of legal inquiry.
Anyone willing to take my word regarding the accuracy of this information is strongly urged not to do so. I do insist the information provided is current and accurate but information like this demands independent verification simply because it is not believable to the general public and more importantly to many attorneys I have known and presented it to.
In a nutshell the current laws in the United States provide that a
prosecutor may fabricate evidence, manufacture allegations, and even
instruct the witnesses a prosecutor may call to testify in support of winning a given case how to lie, commit perjury under oath, and have total immunity from civil lawsuits when caught doing so. It is not to say that a prosecutor cannot be charged for criminal conduct when her, or she, is caught doing these things to win a case because a State Attorney General, or a US Attorney may file criminal charges against a prosecutor who may be caught doing these things but a private citizen cannot, especially the victim of this form of misconduct.
There are many cases available where the judges themselves who wrote
these opinions have explained these immunities, abuses and limitations far better than other judges so I have selected a few of these cases where I feel that these immunities are best explained. [see below].
Another point I want to make is that I have come into contact with many
elected officials in my life and have taken it upon myself to offer an inquiry with all elected official I do know or have come into contact with about whether, or not, they are even aware of these laws and immunities.
If ever there was a truth spoken it is this: To my knowledge no elected
official will even acknowledge these laws let alone offer a public opinion on their fairness.
Any 8th grade level school student should be able to research these laws
and accurately determine whether or not what I have presented is accurate and true, or not.
I have also had contacts with well respected, well known, legal journalists whose legal news articles are published on a national scale. Not one of these "respected journalists" will touch these issues on immunities with a ten-foot pole.
To my knowledge and based on my personal experiences you cannot find any news journalist or public official who holds a public office that will acknowledge these laws on immunities as they currently exist, let alone take a stance and voice their opinion of these laws in a public forum.
One specific use I have offered for attorneys is to apply these facts/laws to a jury by the use of an evidentiary rule known as Judicial Notice. In Michigan the taking of Judicial Notice of the Law is mandatory and a judge cannot prevent it so this is one way I feel that a jury could be "informed" of these laws in any given case where the prosecutor is involved. I have never seen any attorney with the "backbone" to apply this evidentiary rule before a jury.
Imagine any jury being informed that the prosecutor may be lying,
manufacturing and fabricating with total immunity and have the judge
being forced to explain this law to the jury!
Here is a brief "rundown" of how these laws on immunities have
progressed since 1935.
In 1935, The United States Supreme Court addressed this issue: Berger v. United States, 295 U.S. 78 (1935)
http://laws.findlaw.com/us/295/78.html: "As such, he is in a peculiar
and very definite sense the servant of the law, the twofold aim of which
is that guilt shall not escape or innocence suffer. He may prosecute
with earnestness and vigor-indeed, he should do so. But, while he may
strike hard blows, he is not at liberty to strike foul ones."
QUOTES: from Brisco v LaHue (460 US 325)
"As is so often the case, the answer must be found in a balance between
the evils inevitable in either alternative. In this instance it has been
thought in the end better to leave unredressed the wrongs done by
dishonest officers than to subject those who try to do their duty to the
constant dread of retaliation." Gregoire v. Biddle, 177 F.2d 579, 581
(CA2 1949), cert. denied, 339 U.S. 949 (1950).32 "
"This case presents a question of statutory construction: whether 42
U.S.C. 1983 (1976 ed., Supp. V) authorizes a convicted person to assert a claim for damages against a police officer for giving perjured
testimony at his criminal trial. The Court of Appeals for the Seventh
Circuit held that witnesses are absolutely immune from damages liability
based on their testimony, and rejected the petitioners' contention that
government officials who testify about the performance of their official
duties may be held liable under 1983 even if other witnesses may not. We agree with that conclusion."
"A witness' apprehension of subsequent damages liability might induce
two forms of self-censorship. First, witnesses might be reluctant to
come forward to testify. See Henderson v. Broomhead, supra, at 578-579, 157 Eng. Rep., at 968. And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability. See Barnes v. McCrate, 32 Me. 442, 446-447 (1851). Even within the constraints of the witness' oath there may be various ways to give an account or to state an opinion. These alternatives may be more or less detailed and may differ in emphasis and certainty. A witness who knows that he might be forced to defend a subsequent lawsuit, and perhaps to pay damages, might be inclined to shade his testimony in favor of the potential plaintiff, to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence."
"The reasons for this rule are also substantial. It is precisely the
function of a judicial proceeding to determine where the truth lies. The
ability of courts, under carefully developed procedures, to separate
truth from falsity, and the importance of accurately resolving factual
disputes in criminal (and civil) cases are such that those involved in
judicial proceedings should be given every encouragement to make a full disclosure of all pertinent information within their knowledge."
"Subjecting government officials, such as police officers, to damages
liability under 1983 for their testimony might undermine not only their
contribution to the judicial process but also the effective performance
of their other public duties."
"This category of 1983 litigation might well impose significant burdens
on the judicial system and on law enforcement resources. As this Court
noted when it recognized absolute immunity for prosecutors in Imbler, if
the defendant official "could be made to answer in court each time [a
disgruntled defendant] charged him with wrongdoing, his energy and
attention [460 U.S. 325, 344] would be diverted from the pressing duty
of enforcing the criminal law." 424 U.S., at 425."
[Footnote 1] The Court has held that the prosecutor's knowing use of
perjured testimony violates due process, but has not held that the false
testimony of a police officer in itself violates constitutional rights.
See United States v. Agurs, 427 U.S. 97, 103, and nn. 8, 9 (1976)
Now, in 2002, the federal courts are taking a different view towards
prosecutors using these tactics to win cases: (January 23, 2002) Rowe v
Ft. Lauderdale F.3d, 2002 U.S. App. LEXIS 885 (11th Cir. 2002) United States Court of Appeals 11th Circuit No. 00-16361 D.C. Docket No. 97-06832 CV-PAS Appeal from the U S District Court for the Southern District of Florida: "We begin by discussing whether Lazarus was entitled to immunity from Rowe's claims. A prosecutor is entitled to
absolute immunity for all actions he takes while performing his function
as an advocate for the government. Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct. 2606, 2615-16 (1993). The prosecutorial function
includes the initiation and pursuit of criminal prosecution, Imbler v.
Pachtman, 424 U.S. 409, 424, 96 S. Ct. 984, 992 (1976), and all
appearances before the court, including examining witnesses and
presenting evidence. See Burns v. Reed, 500 U.S. 478, 492 111 S. Ct..
1934, 1942 (1991). Under these principles, it is clear that, even if
Lazarus knowingly proffered perjured testimony and fabricated exhibits
at trial, he is entitled to absolute immunity from liability for doing so."
February 9, 2001 Michigan Court of Appeals Docket Number: 215286
Bielaska v Orley [unpublished] "Witnesses who are an integral part of
the judicial process "are wholly immune from liability for the
consequences of their testimony or related evaluations." .. Falsity or
malice on the part of the witness does not abrogate the privilege.... In
this case, we are concerned with the absolute privilege for statements
made during the course of judicial proceedings.... The immunity extends
to every step of the proceeding and covers anything that may be said in
relation to the matter at issue, including pleadings and affidavits."
My understanding of immunities and these current policies is that a
prosecutor is not lawfully prevented, punished, or discouraged from the
use of these tactics, or misconduct, while administering the public trust and that any litigant who may prevail over these tactics must do so by exercising an extraordinary demand for diligence being imposed upon them. Even the witnesses that prosecutors know are committing perjury also have these immunities. In a nutshell the accused must successfully convince the court in a timely manner the prosecutor is wrong, or forever waive a right to address the issue on appeal:
"This Court has repeatedly declined to consider arguments not presented at a lower level, including those relating to constitutional claims. In re Forfeiture of Certain Personal Property, 441 Mich 77, 84; 490 NW2d 322 (1992). Moreover, the Michigan Court of Appeals "functions as a court of review that is principally charged with the duty of correcting errors" that occurred below and thus should decline to address unpreserved issues. See Michigan Up & Out of Poverty Now Coalition v State of Michigan, 210 Mich App 162, 167-168; 533 NW2d 339 (1995)."
Any citizen being falsely accused before any court, may prevail and have
a case dismissed, or reversed on appeal, but the prosecutor is free to
repeat these tactics in any case and at any time the prosecutor chooses
to do so. A citizen may not proceed with a lawsuit or claim an injury
from this "protected form of official misconduct" for only a government
agency may prosecute this misconduct, or corruption.
What is very disturbing is that this truth is so outrageous and
unbelievable that the ordinary citizen being informed of these policies
is not likely to believe it, or even see a need to accurately verify it. The truth also is that the press and media have been suspiciously silent
about these "new accepted standards of conduct."
Terry Fesler Michigan J.A.I.L. email@example.com
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