HispanicVista Columnists
Absolute Immunity
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By
Sal Osio, JD - From the Publisher's Corner
- May 1, 2008
- Absolute Immunity
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By Sal Osio, JD
- What is immoral and dead wrong is to grant the custodians of our justice system immunity against their criminal conduct
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The legal doctrine of absolute immunity, codified into law universally, grants criminal prosecutors and judges total protection from legal accountability of any kind, regardless of the maliciousness and willfulness of their conduct, in the course of their discharge of their function as prosecutor or judge. The victims of their intentional fabrications, withholding or concealment of evidence, prosecutorial misconduct, lies, procurement of perjured testimony and outright misconduct during the prosecution and trial of a defendant, have no recourse. Even when the prosecutorial misconduct, aided and abetted by a judge, is revealed and acknowledged, the victim of the injustice has no cause of action against the protected malfeasant.
That is, there is no accountability unless the State Bar, the Holy Grail of legal morality, steps in to sanction the legally immune prosecutor or judge. And, out of the thousands of unethical and wrongful conduct cases, the State Bar has been known, albeit hardly ever, to sanction the derelict. For instance, the case of the DA’s withholding of exculpatory evidence of the accused Duke University students where the disgraced former District Attorney, Mike Nifong, was disbarred. This is not to say that the defendants wrongfully arrested, prosecuted and/or convicted get any relief from the sanctions for wrongful conduct imposed by the State Bar. There is no criminal sanction nor monetary damage in a court of law. Ask the poor students from Duke University.
Why are State Bar associations, the sole oversight against intransigent prosecutors and judges, so intimidated and reluctant to sanction these unethical persons? The answer is obvious and quite simple: There is an unholy alliance among the Bar and the criminal justice system caretakers. The State Bar is also a prosecutor and judge. They are members of the same fraternity. You may want to read the treatise of Angela J. Davis, a law professor, whose book “Arbitrary Justice – The Power of the American Prosecutor” who points out and criticizes the abuse of power of the prosecutorial system and the ineptness of the State Bars to curb and sanction such abuses.
The doctrine has a justifiable premise. If we do not grant immunity to the prosecutors and judges, we would open the door to countless law suits and claims. The prosecution and judiciary would always be looking behind their backs and would be intimidated in the discharge of their respective duties. So, let the victims of the injustice in the criminal justice system eat cake. They are expendable. It’s all in the name of law and order. After all, if they are arrested there must be a reason to suspect their culpability … even if they turn out to be innocent. Right?
I invite you to visit the case of Paul Cortez. He was arrested and convicted through the efforts of an overzealous prosecutor, in quest for a career enhancement conviction and favorable media publicity. Paul was convicted of murdering his girl-friend and is serving time in a maximum security prison in New York. Read his story and judge for yourself: www.freepaulcortez.org. Paul’s case, regrettably, is but one of thousands miscarriages of justice which occur in ‘blind justice’ America every month. And, logically, such miscarriage of justice would not be possible in the absence of prosecutorial abuses or misconduct and collusion or reckless negligence on the part of the judge.
In his book “The Myth of Moral Justice,” law professor Thane Rosenbaum explains “Why Our Legal System Fails to Do What’s Right.” He observes that “The law perceives itself as blind to prejudgment, yet it is as biased as …” He dedicates complete chapters to our subject: “The Best Kept Secrets of Zealous Advocates” and “Judges Who Feign Not Having Influence.”
The famous author, Franz Kafka, universally known and acclaimed by his global best seller “The Trial” observed that “It never occurred to the lawyers that they should suggest or insist on any improvements in the system.” Clearly, as he points out, improvements are not going to emanate from the legal profession who are the custodians of the criminal law system. They are not about to kill the golden goose.
Therefore, absolute immunity, the shield of the criminals in our criminal justice system, is here to stay. Unless …
Unless, we change the law and hold accountable prosecutors and judges for their crimes. Falsely and wrongfully arresting, prosecuting and convicting an innocent victim is a crime under God’s Law (“Thou Shall Not Bear False Witness Against Thy Neighbor”) and should be considered a crime under our law. Falsely accusing, arresting, prosecuting and/or convicting defendants, based on manufactured evidence, concealment of exculpatory facts or perjured testimony – when proven – should subject the culprits to criminal prosecution and civil damages. The law should appoint an Ombudsman, an independent legal scholar, to filter the accusations and claims of the aggrieved and allow those to proceed which by the introduction of preliminary evidence are meritorious. In this manner, prosecutors and judges are protected from frivolous and unsupported claims.
- Sal Osio, JD is the publisher and CEO of HispanicVista.com (www.hispanicvista.com). Contact at: SPosio@aol.com