LAWMALL
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There are various types of "immunity" which prevents a different types of people from being sued. Prosecutors have an immunity as to most of their activities, which is called "prosecutorial immunity", and judges have an immunity as to even more (virtually all) of their activities as a judge, called "judicial immunity".

As a result of these two types of immunity, a lot of wrongdoing can occur where the courts will refuse to give relief, on the grounds of either prosecutorial immunity or judicial immunity.

If, for example, a judge rendered a judgment in a criminal case which put the criminal defendant away for life, and years (or even months) later, another judge or court reviews the case and sees that there was major error, even judicial wrongdoing (let's assume). But there is no recourse against the judge, because our system needs to have protection for judges and prosecutors to do their judicial and prosecutorial duties without fear of being sued.

Cases clearly allow suits against prosecutors when they get involved in the investigative side, and commit wrongdoing (such as hiding evidence). But when judges commit error (which some might say is judicial wrongdoing, at least if the error is bad enough), there is no corresponding right to sue the judge. Judges have substantially greater immunity to enable them to decide cases without thinking of whether a decision could get them sued.

I have been doing some thinking about "judicial immunity" and have come up with a new version.

Criminal litigation occurs (as with civil litigation) in steps, including

1. investigation into the claimed problem;
2. analysis of what criminal laws may have been violated;
3. concluding who if anyone has criminal liability;
4. analyzing the cost and benefit in pursuing a criminal case;
5. preparing a complaint;
6. obtain an indictment;
7. arresting the defendant;
8. arraigning the defendant (at which time the defendant usually pleads "not guilty");
9. setting bail or putting the defendant in jail because he cannot make bail;
10. obtaining pre-trial discovery;
11. sorting out various pre-trial issues;
12. obtaining experts and their reports;
13. engaging in plea negotiations (settlement discussions in which the defendant is requested to take a guilty plea to a lesser crime than what he/she was charged in the complaint or indictment);
14. preparing for trial;
15. conduct the trial;
16. preparing to charge the jury;
17. jury deliberations;
18. jury verdict;
19. release of defendant if found not guilty, and pre-sentencing activities if defendant was found guilty or pleaded guilty (with an allocution, statement that the defendant did what the plea said he did;
20. sentencing by judge including the type of prison;
21. incarceration;
22. appeal(s);
23. 28 U.S.C. 2255 or 2254 motion for ineffective assistance of counsel and/or prosecutorial misconduct rising to the level of depriving the defendant of a fair trial, or to reduce an illegally-long sentence;
24. and so on.

Most of these activities can have judicial error or wrongdoing, but in the item above "setting bail or putting the defendant in jail because he cannot make bail", there is an extraordinarily abusive and coercive power which the judge exercises, generally at the request of the prosecutor.

The power being discussed is to take away a criminal defendant's property, liberty and in some instances health, prior to any trial or conviction, which obviously would have a major impact on the ability of 99% of criminal defendants to defend themselves properly.

By imposing a cash bail requirement of $50,000 on a gas station attendant, anyone can suspect without more information that the gas station attendant is going to remain in jail because of an inability to come up with $50,000 in cash. As yourself, when was the last time that you had an extra $50,000 in cash waiting for you to make bail.

If the defendant doesn't put up the $50,000, he remains in jail, unable to participate in his own defense. Defending a criminal defendant (especially one accused of an economic crime, such as cooking the books of a public company) often requires a substantial amount of review of hundreds of boxes of documents, reading and discussing the documents, and hundreds of hours of time spent together by defendant and lawyer, but this does not take place when the defendant is in jail. He has no telephone, computer, photocopier, files, typewriter, or other things which we take for granted, and is truly shut out of his/her own defense by the imprisonment, for not having the money to put up for excessive bail.

How much is appropriate for a gas station attendant?

Should we set bail for an amount more than a person can afford to try to keep them in prison, in order to increase the probability of conviction?

Is is the type of conviction society wants, to indict hapless people, then beat them up economically and throw them away in jail to stifle their ability to defend themselves, and then build more jails to accomodate our ever-increasing number of victims to a process which is running amuck?

If the gas station attendant is able to raise the required $50,000, and now has no money left to hire an attorney, what have we achieved? Conviction by the economic knee-capping route, instead of by the incarceration route, but both routes lead to the same place, a conviction because the defendant is overwhelmed (i.e., coerced) by the abuse and winds up having to do time in jail for an alleged crime for which he/she would not have been found guilty if the case were tried.

The whole purpose in imposing high bail in 95% of the non-violent cases is to require (coerce) the defendant to plead guilty (even though he/she is not, under the standards of law which are taken away by the prosecutor and judge), so the prosecutor can obtain more power as a high-powered prosecutor who always wins, and in which the constitution and justice generally loses.

Of all the decisions made by a criminal judge prior to sentencing, the most crippling decision is whether the defendant is permitted to be free on bail, which is directly related to the amount of bail which the judge imposes.

Bail is used, supposedly, to ensure that the defendant shows up for trial, and various factors have to be considered, such as (i) does the defendant have roots in the community, and to what extent, or is the defendant a terrorist with a home base in a middle eastern county?

By setting the bail to an unreasonably high amount, the judge ensures that the defendant cannot get out of jail, and cannot therefore defend himself properly (while in jail, or if able to raise the bail, will have that much less money needed to defend himself/herself). So either way, the setting of bail has everything to do with the constitutional rights to a fair trial, liberty, due process, and other constitutional guarantees.

The first two rights, to summarize, are

1. the right not to have your property (needed to defend yourself properly) confiscated by a judge through the setting of unreasonably high bail;
2. the right not to lose your liberty by being forced to remain in prison prior to the criminal trial because of a judge setting unreasonably high bail; - the U.S. Constitution prohibits unreasonable bail as a constitutionall-protected right; and
3. the third right is more difficult to protect, and it relates to the health of the criminal defendant; an abuse judge, knowing that a defendant already suffered from a heart seizure, could easily produce another seizure by unexpectedly, and without justification, revoking the defendant's bail and placing him/her in handcuffs to be taken to prison for months while awaiting trial. This is a right not to be physically abused by the judge.

I submit that these three rights should be protected at all stages prior to and during trial, by the filing of a lawsuit whenever the abuse occurs.

I'll tell you shortly who should be sued, and why any such suit should be limited to these three protected rights. B

First, I want you to know that there is no right to sue a state in federal court to collect monetary damages for violation of your civil rights unless the state has waived its rights under federal law not to be sued.

But this immunity does not extend to the lower levels of government. You can, in federal court, sue a county and district attorney for monetary damages under <185> 1983, for violation of your civil rights.

The ideas that I have, in light of the doctrine of judicial immunity, and in light of the fact that some judges are abusive when dealing with a criminal defendants' (i) liberty, (ii) property (meaning cash), and (iii) health, why not bring suit against the party in the criminal action which is pursuing the criminal action and the community for whom the errant judge works?

It would seem perfectly consistent with various rules of law to impose liability on the District Attorney and Assistant District Attorney for failing to try to stop the judicial abuse in the case in which they are the adverse party; but if the prosecutor actually objected to the judge's activity, and stated that the prosecutor is not asking for such an order, then the prosecutor should not be sued.

Cases of this type would encourage prosecutors to act as a check on an abusive judge, because prosecutors and their employer and the community will have to shell out large sums of money to pay for the damages caused by abusive judges, and the insurance premiums for the community will climb higher and higher. But prosecutors can reduce this exposure by getting involved and coming to the aid of the defendant if the judge approaches unconstitutional conduct directed toward the defendant.

The county in which the court is located should be responsible for judicial wrongdoing, because the judge is not, and purposely so, but the community is the proper way to obtain relief for the victim and to preserve judicial immunity, without permitting abusive bail procedures to result in guilty pleas by innocent persons who have been deprived of their day in court through the excessive bail trick.

It is interesting to note that liability arises upon the use of excessive bail and related incarceration, whether or not the criminal defendant is innocent or guilty (which one really does not know), and whether or not the jury find the defendant innocent or guilty (and whether or not the jury was mistaken in its verdict).

Accordingly, there is no reason for a defendant to wait until the end of a trial (or until he/she has pleaded guilty to some reduced crime) to try to obtain a redress for the unlawful activities which contributed to the conviction.

From a legal standpoint, there is no reason why a suit should not be brought right away, within hours or days after the abusive act has occurred, even while the criminal defendant is sitting in jail or in the hospital because of a judicially-induced heart attack resulting from an outrageous excessive bail trick.

Every time one of a criminal defendants' three rights is infringed, another action should be filed, or an earlier complaint should be supplemented.

Others should be encouraged to do the same, which in the long run (and perhaps not too long at that), the community will bring pressure on the judge to behave from a constitutional standpoint, so the county can stop paying multi-million dollar settlements, judgments, legal fees, disbursements and higher liability insurance premiums.

If you want to talk about a specific problem, please call me, attorney Carl E. Person (I AM NOT A CRIMINAL LAWYER) at 212-307-4444 or email me at carlpers@ix.netcom.com. I will respond to each communication and try to give you some direction. Here is a warning, please do not expect me to take your case. You will want someone reasonably near the courthouses involved, who is licensed to practice law in your state, and probably has an employment-termination background with civil rights litigation.

Criminal defendants are pleading guilty (instead of trying their cases) at an ever-increasing rate, now 98% in the Southern District of New York. This high rate stems from several sources: (i) lack of funds needed to mount a defense against a well-heeled prosecutor (who uses funds obtained from other victims through forfeitures to go afer the next duck in a row, which could be you; (ii) inability to defend oneself because excessive bail took all available money, and now there is no money for a good attorney, expert witnesses, other costs of aggressive litigation; (iii) plea bargaining system in which a judge threatens you with 50 years in jail if you decide not to plead guilty and lose at trial, but offers you 20 years in jail if you save him the trouble of trying your criminal case - what I am proposing about bail, pre-trial incarcertation and exacerbation of a known health condition by the judge has nothing to do with this third point of plea bargaining. My feeling is that a prosecutor should not have forfeited funds to work with; that a community should have a set budget to spend for criminal law enforcement, and the prosecutor should make a business-type use of such funds by prosecuting the worst cases without settlement through trial, and dropping the lesser cases, unless the prosecutor convinces the persons holding the purse strings that the additional prosecutions and their costs (building more jails) are moneys better spent than building better schools, for example.

I invite you to look at these related websites on prosecutorial abuse and misconduct (created by the same author):