Supreme Court

Absolute Immunity on Trial

Bush's former solicitor general tries to roll back prosecutorial abuse.


In 2006, Assistant U.S. Attorney Brett Grayson lined up more than 30 jailhouse informants to testify that they had sold drugs to Church Point, Louisiana homemaker Ann Colomb and her three sons. (I wrote about the Colomb case in the May 2008 issue of Reason.) Grayson had used some of these snitches before, in the trial of a Houston drug kingpin. After the Houston trial, Grayson was notified that several of his informants had lied, and that there may have been an information sharing network and perjury ring inside the federal prison system. No matter. Grayson used them again. Colomb and her sons were convicted, and spent three months in prison.

The Colombs were eventually freed, with all charges dismissed. Grayson's jailhouse snitches had lied again, and this time, federal judge Tucker Melancon ordered an investigation into new evidence that, somehow, portions of Grayson's case file were being distributed through federal prisons in Texas and Louisiana. The Colombs, meanwhile, spent their life savings on their defense, and were never compensated. According to defense attorneys, Grayson said at one point during the trial that it didn't matter if he personally believed his snitch witnesses, it only mattered what the jury believed, a notion he articulated again in his closing argument.

I thought about the Colomb case while reading the transcript of the oral arguments in Pottawattamie v. Maghee, heard last Wednesday before the U.S. Supreme Court (read my previous column on the case here). The case turns on whether prosecutors who knowingly fabricate evidence to convict an innocent person should be susceptible to lawsuits, or if prosecutors should always have absolute immunity from such suits, no matter how bad their behavior.

During the hearing, Deputy Solicitor General Neal Katyal argued that "if prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence." Katyal made similar statements throughout the hearing: "When someone is introducing evidence at trial, you don't want to chill them in the performance of their duties in any way," and "the overriding interest is protecting the judicial process and not letting information be chilled and not come in." Chief Justice John Roberts underlined that formulation, twice inquiring as to the "chilling" effect of stripping immunity for prosecutors.

It took new Associate Justice Sonia Sotomayor to make the obvious point: We want prosecutors to "flinch" before introducing evidence they suspect might not be true. In fact, we want them to not introduce that evidence at all. And there should be a chilling effect on misconduct as egregious as coaching witnesses to lie. If Brett Grayson had known he could be held liable for his parade of lying jailhouse snitches, perhaps he'd have vetted their stories a bit more carefully, or been more vigilant about ensuring that portions of his case file didn't somehow get passed around the prison system.

The amount of liability the would-be plaintiffs in Powattattamie want prosecutors to shoulder is minimal. The Supreme Court has held for 30 years that even prosecutors who knowingly withhold exculpatory evidence in a case that results in the conviction of an innocent person can't be sued for damages. The wrongfully convicted men in Powattattamie aren't even seeking to undo that. They're asking that prosecutors who knowingly fabricate evidence against an innocent person, then use that evidence at trial, be susceptible to a lawsuit. And even there, prosecutors would still be afforded the qualified immunity given to police officers, which means potential plaintiffs would still have a high hurdle to clear before getting into court. (It's worth noting that the prosecutors in Powattattamie weren't sanctioned or disciplined in any way, which is about par for the course in the criminal justice system.)

The problem here is that the Supreme Court has painted itself into a corner. While the Court has always upheld absolute immunity for prosecutors while trying a case, it has ruled that prosecutors who help investigate a case—that is, who act as police officers—should receive the same, reduced qualified immunity given to cops. But here's where it gets messy. At what point is a prosecutor acting as a prosecutor, and at what point is he acting like a cop? The roles have been muddied over the years.

Consider snitch testimony. Under federal law, only a federal prosecutor, and not a federal police investigator, can gauge whether information offered by a jailhouse snitch is useful enough to offer time off the informant's sentence in exchange for his testimony. That means prosecutors are put in the role of interviewing potential informants to determine whether the stories are plausible (or, if they're less scrupulous, merely whose stories are most damaging to the defendant). This is more the role of an investigator than the prosecutor of a case.

Solicitor General Katyal and the attorney for the prosecutors in Powattattamie both made the absurd argument that the actual injury in Powattattamie occured when the defendants were wrongly convicted and jailed, not when the evidence against them was manufactured. Therefore, because the prosecutors were acting in their role as triers of the case when the injury occurred, they should be immune to lawsuit, even though they were acting as investigators when they conjured up the perjured testimony in the first place. Had they passed the evidence off to another prosecutor for trial, they could still be sued. This led Justice Anthony Kennedy to ask, "so the law is the more deeply you're involved in the wrong, the more likely you are to be immune? That's a strange proposition."

It certainly is. Katyal went so far as to argue that even police officers who manufacture evidence used to convict an innocent person may not be liable, so long as they tell the prosecutor ahead of time that the evidence has been faked—again because the actual injury occurs at the time of conviction, and at the time of conviction the state actor inflicting the damage is the prosecutor acting in his role as prosecutor, at which point he has immunity. Kennedy reiterated the problem: "Again, the more aggravated the tort, the greater the immunity."

Katyal went on to argue that there is no "free-standing due process right not to be framed," a striking line that made it around the Internet last week. If you're a constitutional originalist, that statement isn't quite as controversial as it first sounds: An originalist may believe that the Constitution protects us from government overreach, but it doesn't explicitly lay out a method of recovering damages for government violations of our rights; that's left up to Congress.

The problem with the originalist interpretation is that the Constitution's authors surely would have hoped for and expected at least some relief. The Bill of Rights both establishes a civil courts system to allow citizens to recover damages from one another, and lays out a clear set of rights that government officials aren't permitted to abrogate. It makes little sense to think, then, that the document would be consistent with the notion that government officials could systematically violate two citizens' rights in a way that resulted in significant injury (in this case, 26 years in prison), and yet be wholly immune from those citizens' efforts to collect damages, simply because Congress failed to legislate a path to relief.

One of the notable things about this case is that the pro-law enforcement position was argued by Katyal, an official in the Obama administration, while the pro-defense, anti-executive branch position was argued by Paul Clement, the former solicitor general for the Bush administration. The Obama administration has consistently taken the pro-prosecution side in criminal justice cases since Obama took office, confirming that where the rubber meets the road on issues related to police powers and the rights of the accused, what matters most is not political ideology but who holds the reins of power.

Clement's toughest questioning came from the Court's two Bush appointees, Chief Justice Roberts and Justice Samuel Alito. But Clement rather brilliantly concluded his time with a direct challenge to the two Bush-appointed justices that probably won't affect either's ruling, but at least ought to make them squirm. Keeping prosecutors immune from liability, he argued, is a classic case of judicial activism.

The phrase "absolute immunity" appears nowhere in the Constitution, nor does it appear in Section 1983, a part of the federal criminal code that provides a way for citizens to collect damages against the government. The Court read absolute immunity into the law in the 1976 case Imbler v. Pachtman because it feared the ramifications of prosecutors being susceptible to lawsuits. As Clement argued, there is "no common law support at all for absolute immunity. And I wouldn't think that this Court was particularly interested in coming up with implied immunities that aren't in the statute and had no basis at the common law, and that's why I think some of the Justices that have looked at this as an original matter have tended to be quite reluctant in recognizing absolute immunity because it lacks support in the text."

So while for most of the hearing the Court and litigants took absolute immunity as a given and debated whether and how to carve exceptions into it, Clement concluded by pulling the sheet back on absolute immunity, period. In doing so, he cleared a path for the justices to revoke absolute immunity altogether, or at least severely limit the concept. That almost certainly won't happen. But it should (but probably won't) give the Court's conservative wing some cover to at least poke enough holes in prosecutorial immunity to discourage the more egregious examples of misconduct.

Radley Balko is a senior editor at Reason magazine.

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  1. Why can’t everyone just be naturally honest?

    1. Money, it’s a crime.
      Share it fairly but don’t take a slice of my pie.

    2. If everybody was naturally honest, we wouldn’t need police, prosecutors, or most judges at all and would not be arguing about immunity for a position that would probably only exist on an ad hoc basis.

  2. How do you come out of that almost sounding optimistic? Have you been hanging out with Sullum?

  3. again because the actual injury occurs at the time of conviction, and at the time of conviction

    But the actually injury does not occur at the time of conviction. The injury occurs at the time of arrest.

    I’m imagining myself living in my peaceful, lower middle-class lifestyle, and then suddenly finding myself arrested as a drug dealer because I have the high misfortune of having my house placed on top of a bus stop.

    The injury begins there. My job will be affected, time with my children, my earning potential, my savings impacted on attorney fees. The list goes on. The injury is merely consumated at the time of conviction.

    Tell someone wrongly convicted that everything was just fine because they beat their court case.

    1. I think you could only argue that the injury occurs at arrest if the malfeasance led to the arrest, which would be the prosecutor acting as investigator (for which different rules apply). If the prosecutor doesn’t perjure the state until the trial, then the harm occurs at conviction.

      Of course, when I read “due process”, that means everything, from the very first time my name even shows up on their radar.

      I am not a lawyer, that’s just my read of it.

      1. If I lied to the prosecutor who was handling the case would you say that the lie didn’t hurt you until conviction? The lie hurts you the moment that any action is taken against you that otherwise would not. To argue otherwise is to say that soaking my house in petrol didn’t hurt me, only your partner throwing the match did.

        1. No what I’m saying is that it’s possible to have sufficient evidence for arrest, but then have some perjurious action by the prosecutor at arraignment or trial. In that case, I don’t know what sort of claim you could honestly make pertaining to the original arrest.

        2. To argue otherwise is also to say that a shooting death is not caused by a human pulling the trigger to a gun but only by the bullet entering the body. The one who loaded the gun, pointed, and pulled the trigger did not cause the death. The bullet caused the death.

  4. Let’s put the whole muddy issue of a civil suit aside. If a prosecutor fabricates evidence, that’s a criminal act. Civil case be damned… He should be disbarred and thrown into jail, no?

    1. He should be disbarred and thrown into jail, no?

      When did summary execution get taken off the table?

  5. So, what’s the score on this going to be? An ironic 7-2 in favor of suing the bastards? It seems almost too good to be true.

  6. I actually have no clue what the vote will be. If they open a door to suing the prosecutors, it won’t be easy. The only clear votes that seemed to emerge from the arguments were Alito and Roberts in favor of immunity, and probably Stevens and maybe Sotomayor against.

    1. Holy shit! So Sotomayor may not be a law-and-order uberbitch after all.

      1. I wouldn’t jump to conclusions. Let’s remember that as a Federal judge she sided with the prosecution in over 70% of cases regarding constitutional rights.

        I assume most of those were search and seizures, they typically are.

        But yeah, I was surprised with her comments as well.

  7. His name is Neal Katyal, not Katyan. You get it right the first time, but then start misspelling it.

      1. A little bit

  8. Fuck lawsuits. The death penalty should be reserved specially for government officials who fuck people over like this.

    1. Seconded. And Hollywood types who defend rape-rapists.

  9. So its OK to lie to a panel of jurors and a judge, as long as you are an attorney?


    That makes sense.

    1. As long as you’re a prosecutor.

      1. Right. If you’re a defense attorney you’ll be disbarred and jailed.

  10. Shouldn’t defense attornys be pointing this out in their opening arguments? The fact that the prosecuting attourney is allowed to purposefully mislead and even fabricate evidence would be important to me if I were on a jury.

  11. I agree with Paul, they should be subject to criminal prosecution, not just lawsuits. Throw the prosecutor in prison and let him serve the same amount of time as the guy he fabricated evidence against.

    1. They are theoretically subject to criminal prosecution, the problem is that the people who whether or not to do so are… prosecutors. Political appointing of prosecutors is the root cause of the problem. Simply use a Department of Public Prosecutions and hire the prosecutors on a case by case basis, making sure to hire people who also do defense work.

  12. Agreed with the criminal penalties (although civil is a good start). When you use your position of power to deliberatly fuck people over, hell yeah you should be liable.

    In fact, I would argue that they have a professional duty (besides a moral one) to make sure the evidence is true. Just like doctors have one to provide good healthcare, or CPA’s good financial advice.

  13. A good start would be if the bar got off its ass and started disbarring them.

    Trying to prove the prosecutor was lying would be difficult, like prejuy. The prosecutor would claim they believed the evidence was good. How did they know the jail house snitch was lying? How do you prove otherwise?

    It will be interesting how Mr. New Professional Scalia votes.

    1. If the government was serious about it this would be easy to prove. Simply locate prosecutors with records of using dubious snitches. Send in a guy you have proof is innocent but who agrees to refuse to talk, could be a policeman, could be just a PI. Give the prosecutor evidence that tends to incriminate him, but which is hardly sufficient to convict. Do not tell the guy anything about the evidence you provide. The guy gets charged, the only way to convict him is jailhouse snitch testimony. Naturally the jailhouse snitches use the information from the bent prosecutor to frame the guy. Then after they testify, show the film of him having lunch with the Attorney General 1,000 miles away at the time. Ask the snitches if they’d like to tell you how they came by the information. Naturally they’ll snitch on the prosecutor.

    2. It will be interesting how Mr. New Professional Scalia votes.

      Well, we do have Scalia’s concurrence in 1993’s Buckley v. Fitzsimmons, where he wrote separately to say that he had “some reservation about the historical authenticity of the “principle that acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity.” That’s as opposed to Justice Stevens’s majority opinion, which took that principle for granted while making some small holes in it for when prosecutors acted as investigators.

      Justices Scalia and Thomas have been considerably willing to limit prosecutorial powers– just look at the recent vote on requiring lab experts to testify.

      Justice Breyer is a possible swing vote here. Justices Alito and Roberts are the most likely pro-police votes, like in most circumstances.

  14. Throw the prosecutor in prison and let him serve the same double the amount of time as the guy he fabricated evidence against.

    FTFY — “Hate crime”, don’t ya know.

  15. I think if you used the same normal proffesinal standard, you would not have to prove purjury. Basically if an average prosecuture ,using due care, who looked at the evidence would not have come up with that conclusion, then you are liable.

    This works in all types of other situations, it should work here as well.

  16. I predict 7-2 in favor of prosecutors.

  17. Powattattamie?

    1. Yes, as in, “don’t Powattattamie, bro!”

  18. I’m positively surprised by Sotomayor. She may live up to that “wise latina” self-appellation after all.

  19. If a prosecutor convicts on fabricated evidence, then the whole process is compromised. It is no longer a question of when does the damage begin, but one of misguided ethics. Any person involved in prosecutorial misconduct should be held liable for any and all damages. And because a higher standard of ethical conduct was not followed, it should be damages, both real and imagined.

  20. I don’t see how it makes any sense that a witness who presents false testimony on the stand is guilty of a felony, while a prosecutor who knowingly presents false evidence in a trial faces, at most, censure from his profession. Presenting evidence known to be fabricated or doctored should be a criminal offense with the same penalties as perjury.

  21. “if prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence.” Katyal made similar statements throughout the hearing: “When someone is introducing evidence at trial, you don’t want to chill them in the performance of their duties in any way,” and “the overriding interest is protecting the judicial process and not letting information be chilled and not come in.”

    You know, I’m old enough to remember those halcyon days when suborning perjury was not considered part of a prosecutor’s duties.

    1. I’m totally OK with false information being chilled from coming in. I thought that was the whole point of outlawing perjury.

  22. I don’t think that prosecutors should be subject to civil lawsuits, at least not in the abscence of a loser pays standard. The potential for frivolous harassment lawsuits is too great, particulary if the accused is well connected. If anything, knowingly presenting fabricated evidence should be treated as a contempt of court charge or a form of perjury.

    1. Everybody else has to live with the prospects of frivolous lawsuits, why not prosecutors? If a prosecutor isn’t being negligent it’s easy to prove it. Why would anyone waste valuable lawyer time trying to prove what isn’t true? That’s expensive and pointless.

      1. “Why would anyone waste valuable lawyer time trying to prove what isn’t true?”

        Three words, Pro Se Litigant.

    2. Sure. So long as that contempt of court charge carries a mandatory minimum sentence and that “form of perjury” is the charge of perjury.

      You should read “Three Felonies a Day”. Seeing as how you’re commenting on Hit and Run, you should be able to find an ad for it somewhere.

  23. Antonin Scalia had nothing to say?

  24. I also agreed with the criminal penalties (although civil is a good start).

    It seemed it could yet mean stilettoes at dawn.

    Not at all, insisted Yeardye’s people. Tamara had brought great energy and vision to the operation; it was merely a matter of giving acknowledgement where it was due. There were differences of opinion in all businesses, but they felt confident that, a year from now, Christian Louboutin would still be chairman, and owner with ‘the Yeardye family’, of the ready-to-wear.

    Christian Louboutin Shoes has come a long way from George Town, Malaysia, where he was born into a middle-class family, one of two children, some 43 years ago.

    He has come a long way, even, from his tentative commercial beginnings in Hackney. He has a datukship – the equivalent of a knighthood – from the Sultan of Pahang, a big following among the fashionable elite.

  25. Are prosecutors immune to bullets?

  26. In writing, “It took new Associate Justice Sonia Sotomayor to make the obvious point: We want prosecutors to “flinch” before introducing evidence they suspect might not be true …,” Mr. Balko dangerously sides with a flaming liberal lady lawyer against our society’s properly constituted policing authorities.

    Is that what Reason’s come to at last – an eager willingness to sacrifice our nation’s safety and security to thwart the rare, rare case of prosecutorial misconduct?

    I’m in no way denying that in America there are innocents languishing behind bars. Of course that’s unfortunate.

    But think how much safer we are with 2.4 million people behind bars than we would be if we had, say, only 700,000 or 800,000 jailbirds, the number we’d have if we incarcerated at a rate comparable to what most other jail-happy countries jail at?

    And think also of all the people who’d be out of a job – prison guards, cops, lawyers, bail bondsmen, judges, bailiffs, parole officers, prison construction companies, etc., etc., etc!

    In other words, there’s a huge silver lining in terms of safety, security and job creation in “prosecutorial misconduct.” It shouldn’t be abandoned lightly!


    1. Oh, [clap][clap], that sir is FIRST CLASS trolling. Brav-O!

  27. Wouldn’t it be easier to simply plant evidence that they murdered someone on all the bad prosecutors? Save all court time wasted on “due process” and “rights”.

    1. Whoa, pardner! And boost unemployment?

      All that “time wasted” on “due process” and “rights” keeps our protector class in jobs and puts food in their mouths.

      Win, win.

  28. I can vaguely accept the reasoning of not allowing prosecurotrs to be sued for not doing their job well enough, but when they are knowingly fabricating evidence? We really need a blanket law that if you frame someone for something, you get sentenced to whatever they were sentenced to (or could have been.)

    1. We shouldn’t have to prove they are criminal, unethical behavior should be enough to get them removed. The bar should take this issue more seriously.

  29. “””The phrase “absolute immunity” appears nowhere in the Constitution, nor does it appear in Section 1983, a part of the federal criminal code that provides a way for citizens to collect damages against the government. The Court read absolute immunity into the law in the 1976 case Imbler v. Pachtman because it feared the ramifications of prosecutors being susceptible to lawsuits. “””

    Wouldn’t that be judicial activism?

    1. That would be why Justice Scalia criticized it in his concurrence in Buckley v. Fitzsimmons, yes.

      Note that in Buckley, it was Stevens, Blackmun, O’Connor, Scalia, and Thomas weakening prosecutorial immunity somewhat. Kennedy, Rehnquist, White, and Souter voted to uphold absolute prosecutorial immunity even when acting as investigators.

      Those votes should not be particularly surprising to anyone, either. And yet, any time the Court lines up in such a way, people are forced to call it an unusual lineup.

      1. If you had just spent 26 years in prison based on false testimony knowingly put forward by the prosecutor, I don’t think you’d draw much comfort from Scalia’s pathetically mild criticism of prosecutorial immunity. Scalia is an authoritarian scumbag. All this crap about “originalism” is just a ruse to make it look like there’s some kind of legal principle behind his worship of power.

        1. I don’t think you’d draw much comfort from Scalia’s pathetically mild criticism of prosecutorial immunity. Scalia is an authoritarian scumbag.

          Except that he was part of a 5 vote majority to weaken it, and criticized it more than anyone else on SCOTUS. So, then, it’s relative, in that he’s less of an authoritarian scumbag on this issue than any other Justice.

    2. Yes, but it’s judicial activism on behalf of the state, which is the good kind.

  30. Maghee is Mr Magoo’s cousin.

    McGhee is the one of the plaintiffs. Another harm? 🙂

  31. I have said it before. If the so-called “justice” system won’t hold the lying scumbags accountable for their actions, then it is up to the wronged party to seek justice the old fashioned way. A high profile string of murders for lying dishonest prosecutors will do more to “chill” the presentation of false evidence than lawsuite will.

    1. I have said it before. If the so-called “justice” system won’t hold the lying scumbags accountable for their actions, then it is up to the wronged party to seek justice the old fashioned way. A high profile string of murders for lying dishonest prosecutors will do more to “chill” the presentation of false evidence than lawsuite will.

      The sooner it happens, the better.

  32. Very nice piece Mr. Balko.

  33. Put Justice back into the hands of The People. Juries legally can, and HAVE changed unjust laws by refusing to convict in the teeth of the law. This has been demonstrated during Prohibition.

    1. It’s called jury nullification. And it’s just the best.

    2. Put justice back into the hands of the people by abolishing the state and its monopoly legal system. I’m not sure I want to rely on jury nullification to save me from this kind of criminality. First of all, how many jurors would even know what it is, let alone act on it? It’s not like the judge is going to recommend it as a possible course of action.

  34. Realize justice IS in the hands of the People. Juries legally can and HAVE changed unjust laws merely by refusing to convict in the teeth of such laws. Ref. Prohibition.

  35. Absolute immunity is unconstitutional and a cruel hoax on Americans. Remember that before they became judges, too, too, many judge were prosecutors. See (below) the piece that refused to publish.

    Slate refuses ‘equal time’
    The South Dakota Amendment E
    Piece Slate Magazine Refused to Publish
    By: Gary L. Zerman*
    This is South Dakota Judicial Accountability’s (sponsors of “Amendment E” on the 2006 ballot) reply to Bert Brandenburg’s (Executive Director, Justice At Stake -JAS), two Slate pieces “Rushmore to Judgment,” March 14, and “Bench-Clearing Brawl,” July 28, 2006.
    In Rushmore, Brandenburg wrote that our initiative is “? one of the most radical threats to justice this side of the Spanish Inquisition.” Apparently Brandenburg missed the fact that inquisitions are done by those in power ? to the People. Not the other way around.
    In Bench-Clearing Brawl, he wrote that the 2006 election will have “?a cluster of state ballots initiatives designed to hobble the courts? that point toward a political intimidation racket benefiting special interests that want courts to deliver results, not justice.” Imagine that? We’re a grass roots citizens’ group, yet he and his group JAS are the guys out of DC – and he calls us “special interests.” Any doubt who’s the real political intimidation racket, look at Justice at Stake Org. and No on E Amendment. See who they really are. Readers you decide if our initiative or Brandenburg – is the threat to justice.
    If we’re so wrong in South Dakota, why does his Brawl piece point up that citizens in Colorado, Montana, Oregon, and Illinois are also putting forth measures to make the judiciary accountable? Actually he put it: “? court-bashers have been busily framing their anger in accountability terms that resonate with American values.” Resonate with American values? You bet. He didn’t tell you that resonation is also being felt in DC where Rep. Sensenbrenner and Sen. Grassley want an inspector general to ride herd over the federal judiciary and finally there is clamor for impeaching USDC (Cal.) Judge Manuel Real.
    About impeachment, Brandenburg wrote “And judges every where can be impeached for misconduct.” Really? Name the last judge impeached? Federal or state. At SDJA we say, “Impeachment’s like Haley’s Comet, it comes around once every 76 years.” Moreover, over 99% of the misconduct complaints against federal judges, year-in-year-out are dismissed without discipline imposed. As Justice Kozinski (9th Cir.) to his credit wrote, in his dissent against the dismissal (the 3rd and final time) of the complaint against Judge Real:”… It does not inspire confidence in the federal judiciary when we treat our own so much better than everybody else.” Bingo!
    They claim it’s all about judicial independence. For a total debunking of their claim that immunity is required for independence, see Justice Douglas’ lone dissent in Pierson v. Ray, 386 US 547, 558 (1967). And what about the judges’ misconduct documented in all the recent articles about “Judicial Junkets” and “Juice vs. Justice”? No, the People won’t be fooled anymore. It’s about judicial accountability. Now!
    Brandenburg’s hysterical hyperbole continued in Rushmore, writing our initiative would “? wipe out a basic doctrine called judicial immunity that dates back to the 13th century, protecting judges from personal liability from doing their jobs on the cases before them. A special grand jury ? essentially a fourth branch of government ? would be created to indict judges?” He didn’t tell you the doctrine actually is absolute judicial immunity (AJI), and it covers corrupt and malicious judicial acts, even – eugenics. See Stump v. Sparkman, 435 US 349 (1978), a 5/3 decision, giving Judge Stump immunity, after he illegally ordered a 15-year-old girl sterilized; she never appeared in court, nor had counsel or any representation, was lied to and told she was having an appendectomy, and had no appeal ? the sterilization irreversible. Nor did he tell you the three (3) dissenting justices were repulsed by Judge Stump’s behavior; so were the federal appellate justices, who voted 3/0 against immunity for Stump. The total vote in the case (district, appellate and Supreme Court) was 6/6. Thus the doctrine of absolute immunity is not so absolute ? even among judges.
    The 13th century was the only authority Brandenburg could muster in his pieces for judicial immunity. (That era gave us the divine right of kings, the Black Plague, beheading, drawing & quartering, serfdom and most thought the earth was flat.) That’s the best he can do? He omitted, like most of our critics, and the media, to provide you our core arguments:
    1) there is no authority in our Constitution giving immunity to judges (nor do any USSC cases on AJI ever cite any);
    2) judges giving judges AJI violates the doctrine of separation of powers – the so-called checks & balances (nor do any USSC cases mention this);
    3) AJI turns the sovereignty of We the People on its head, placing the judiciary over, above and beyond the People, making the servant the master; and,
    4) why has our USSC condoned eugenics? Stump v. Sparkman.
    NOTE: Neither Chief Justice Roberts, nor Justice Alito, were asked any of these questions at their recent Senate Judiciary Committee confirmation hearings.
    Checks & balances? Phooey.
    Like in Rushmore, Brandenburg wrote in Bench-Clearing Brawl, the “? initiative would amend the state constitution to create a fourth branch of government: a special grand jury to sue judges and others for their decisions.” Here he demonstrates his fundamental misunderstanding of our Constitution. And that is dangerous. First, he ignores that the Constitution was designed to limit the power of government – not the People. All power resides in the People. Government gets its just powers from the consent of the governed. We never gave judges immunity. Second, he ignores that We the People are sovereign. Our Constitution starts: “We The People.” — NOT we the government, nor we the judiciary. We are not a “branch” of government. We are the tree, the trunk, the roots. We are the masters – government is our servant, mere branches. Actually, with their dereliction to true checks & balances, they could be termed “The Three Little Twigs.”
    Example: Remember Kelo v. City of New London? That’s the 5/4 eminent domain case, where the Kelo 5 wiped out the “public use” clause of the 5th Amendment. Where was President Bush? Silent. Where was Congress? Hardly a whimper. To their credit, great dissents were written by Justices O’Connor and Thomas. O’Connor later told an audience of ASU law students that Kelo was “pretty scary” and “fuzzy jurisprudence.” Is Justice O’Connor a court basher too?
    A further example:Illegal immigration. Plyler v. Doe, 457 US 202 (1982), another 5/4 decision, that opened the floodgates, and left the People – to pay the “check.”
    Finally, Brandenburg concludes Brawl: “The courts that protect our rights need their own permanent campaign to counter the war rooms arrayed against them.” But aren’t we always told that the judiciary is non-political, above the fray, independent? So instead of holding miscreant judges accountable, Brandenburg and cronies want the judiciary to go on a permanent campaign. He’s admitted what we knew all along: the judiciary’s mostly just a bunch of politicos, junkets, juice and all, just like the other two twigs.
    All we ask is a most basic covenant of life, something we all owe and ask of each other: individual accountability.
    The People vehemently disagree with you Mr. Brandenburg. Readers check out the blogs at Slate’s Jurisprudence Discussion. Honestly, Mr. Brandenburg does not work for us. Mr. Brandenburg please write some more pieces. And Slate please publish them.

    *Gary L. Zerman is an attorney licensed in California and Arizona. He is counsel and a media representative for South Dakota Judicial Accountability Committee ? SDJA ? a grass roots citizens group, the sponsors of Amendment E.
    Gary Zerman Email
    Referenced materials
    1) Call for a federal inspector general over federal judiciary. 4/25/06 Associated Press, 2 Lawmakers Call for Judiciary Watchdog, by Laurie Kellman; 4/27/06 U.S. Newswire, Sennsenbrenner, Grassley Introduce Legislation Establishing an Inspector General for the Judicial Branch; 5/22/06 Los Angeles Daily Journal, Criticism Mounts That Judiciary Lacks Self Discipline ? Congressman Wants An Inspector General To Ensure Unethical Judges Are Punished, by Lawrence Hurley.
    2) Judge Manuel Real. 1/18/04 LA Times, Judge [Real] May Face Sanctions, by Henry Weinstein; 10/3/05 Metropolitan News-Enterprise, Ninth Circuit Panel Tosses Misconduct Case Against Manuel Real, by Kenneth Ofgand; 12/6/05 Contra Costa Times (LA Times), DuPont Racketeering Suits Reinstated, by Myron Levin; 5/7/06 LA Times, Complaint Against Judge Has Broader Ramifications, by Henry Weinstein; 7/28/06 LA Times Editorial, Judicial Undersight.
    3) 6/2/06 Los Angeles Daily Journal, Chief Judge to Set Up Panel for 7-Year-Old Misconduct Case, by Amelia Hansen.
    4) 1/18/06 San Jose Mercury News-Associated Press, House Chairman Seek Probe, Possible Impeachment of LA Judge, by Erica Werner; 1/19/06 Los angels Daily Journal, Congressman’s Gambit Puts Judge on Path to Impeachment, by Lawrence Hurley; 7/18/06 LA Times, Impeachment Inquiry of Judge Sought, by Henry Weinstein.
    5) Impeachment of federal judges. See U.S. v. Hastings, 681 F.2d 706 (1982), at 709, footnote 7, stating “Nine federal judges have been impeached and brought to trial before the Senate.” That would be only nine judges over 193 years, at that time.
    6) 99% of complaints against federal judges?dismissed w/o discipline. 8/7/02 Las Vegas review Journal ? Associated Press, Self-policing Federal Judges Rarely Impose Penalties, by Anne Gearan, which reported that “Of 766 ethical complaints last year [2001], only one resulted in a penalty? [P] In the single case last year in which the judge was punished, the penalty was a private censure and no details, not even the judge’s name were released.” 1/766 is .0013!; 8/7/02 Los Angeles Daily Journal (same AP article, extended version), Federal Judges Seldom Discipline Colleagues; 1/18/04 LA Times, Judge [Real] May Face Sanctions, by Henry Weinstein, which reported “?More than 99% of the complaints filed against federal judges around the country are dismissed out of hand. The 9th Circuit Judicial Council has reprimanded only two jurists in the last decade, while rejecting hundreds of complaints, according to official records.”
    7) Justice Alex Kozinski, 9th Circuit Court of Appeals – dissent. 10/1/05 The Recorder, 9th Circuit’s Kozinski Blasts L.A. Judge, Majority in Discipline Case, by Justine Scheck; 10/1/06 LA Times, L.A. Judge Avoids Sanctions by Panel ? A Judicial Council does not Punish the Federal Jurist, Who Improperly Took Over a Bankruptcy Case ? Two Judges File blistering Dissents, by Henry Weinstein10/3/05.
    8) For Justice Kozinski’s dissent, see In re: Complaint of Judicial Misconduct, No. 03-89037, Order, filed September 27, 2005, (9th Cir. Judicial Council).
    9) Judicial Junkets. 12/20/04 Press, Senate Seek Legislation on Ethics for Judicial Trips, by Jim Abrams; 1/12/06 Human Event, Justice by Junket, by Ken Connor; 1/20/06 NY Times, Tripping Up on Trips: Judges Love Junkets as Much as Tom Delay Does, by Dorothy Samuels-Editorial Observer; 1/27/06 LA Times Editorial, Justice and Junkets; 1/28/06 Rocky Mountain News, Scalia ‘Junket’ Defended, by Karen Abbott; 1/30/06, Political Spotlight Shine on Judicial Ethics; 4/18/06 Washington Post, Ethics Lapses by Federal Judges Persist, Review Finds, by Joe Stephens; 4/28/06, CRC Report Says Increased Amount of ‘Junket for Judges,’ by Tony Mauro; 5/1/06, Watchdog Group Singles Out ‘Junketing Judges’, Tony Mauro; 5/3/06 USA Today, How to influence Judges; 5/08/06 Houston Chronical, Area Judge Ranked 4th in free Trips, by Harvey Rice
    10) Juice v. Justice. 3-Part Series by LA Times, titled JUICE V. JUSTICE by staff writers Michael Goodman and William C. Rempel.. Part I, 6/8/06 In Las Vegas, Thy’re Playing With a Stacked Judicial Deck ? Some Judges Routinely Rule in Cases Involving Friends, Former Clients and Business Associates ? and if Favor of Lawyers Who Fill their Campaign Coffers; Part II, 6/906 For a Vegas Judge and His Friends, One Good Turn Led to Another ? James Mahan Got His Jobs on the State and Federal Benches Through connections of Old Pal George Swarts ? Things Turned Out Well for Swarts Too; and, Part III, 6/10/06 How Some Judges Stay Under the Radar ? some Senior Judges Are Exempt From Some Rules of Accountability ? The Career of 3 Jurists Reflect The Ethical Questions That Can Result.
    Follow up articles re above Las Vegas series by LA Times: 6/14/06 Series on Las Vegas Judges renews Calls for Reform; 6/18/06 John L. Smith: Unflattering Series on Judges Unlikely to Alter system, but Could Change Players; 6/23/06 Three Las Vegas Judges Face High Court Review ? In Response to Times Investigation, Nevada’s Justices want the Senior Jurists to Answer Conflict-Of-Interest and Favoritism Allegations; 6/25/06 Inquiry Sought Into Vegas Jurist ? The 9th Circuit Might Already be Planning to Act on Complaints About Judge James C. Mahan.
    11) Justice O’Connor. Her comments referenced in this piece re the Kelo v. City of New London, No. 04-108, decided June 28, 2005, are found in 9/20/05 The Arizona Republic ?, O’Connor Notes ‘Scary’ Court Decision, by Joe Kamman.

  36. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books. In other words, there’s more to the books of the Bible than most will ever grasp. I’m not concerned that Mr. Crumb will go to hell or anything crazy like that! It’s just that he, like many types of religionists, seems to take it literally, take it straight…the Bible’s books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on.

  37. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane.

  38. Terrifying To Even Contemplate ? Iran’s Crispus Attucks: Demonstrators Chant the Name of Neda ? Related posts on of Guards Philips?

  39. Absolute immunity absolutely corrupts.

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