Jan
04

Pottawattamie Lost

I don't know whether to breathe a sigh of relief, or gnash my teeth: But the Supreme Court has dismissed without decision the case of Pottawattamie County, et al., v. McGhee, et al. (08-1065). That's because the parties settled the case for a reported sum of $12 million. By dismissing the case, the Supreme Court constructively endorsed the practice of municipalities' insuring public officials for what amounts to conduct that shocks the conscience.

The issue in Pottawattamie was simple: Were prosecutors immune from suit when they knowingly procured false testimony and then used it in the prosecution of an innocent man? It takes balls as big as a freak show pumpkin to assert such an immunity, but given the current state of the law, why not? Our courts are systematically eviscerating claims arising under 42 U.S.C. Section 1983 with cancerous new immunities. Why not just declare prosecutors off limits once and for all? I feared that would be the import of the Pottawatamie decision.

But it may be that it is still possible to shock the conscience of a Supreme Court justice. We won't know now until the next case of prosecutorial misconduct makes its way to the court.

The Pottawattamie plaintiffs claimed that their Fourteenth Amendment right to substantive due process had been denied by lawmen so bent on a conviction that they would lie to a judge and jury to obtain one. The plaintiffs were convicted, and spent decades behind bars before they were exonerated. Proof of a subtantive due process claim requires showing conduct that shocks the conscience; the conduct in question must be at odds with the norms of a civilized society, and so fundamentally jarring as to threaten the very concept of ordered liberty. This standard is almost impossible to meet in the United States: the judicial conscience, you see, is on the endangered species list, having been all but slaughtered by efficiency freaks and those enamored of the state's power.

I expected a defeat for the plaintiffs in Pottawattamie. Perhaps I was wrong.

Obviously, it takes a case or controversy to keep a case alive, and if the parties have resolved their differences in this case, then so be it. But still, I would have preferred the Court to retain jurisdiction over the case to decide its merits once and for all. Surely, the public importance of a decision involving prosecutors who will lie to obtain a conviction raises issues fundamental to a republic. The case was on submission: the Court should have reached a decision. Substantial questions still remain about when and whether prosecutors can be liable for lying.

Instead, what we ended up with is the worst of all possible worlds, especially if you are are a taxpayer in Pottawattamie County. When lawyers for the lawmen agreed to ante up a fortune, they agreed to pay funds from the public fisc. In other words, the good people of the county are now offering financial insurance to conduct that should be regarded as a crime. And the lawmen apparently will suffer not at all. Will there be a revolt in the county? Probably not. The sheep, you see, are content to be slaughtered: that's how we ended up with a court system increasingly numb to the claims of justice.

Sadly, I expect little else when it comes to claims of official misconduct. We drapes these claims in the same species of deceit we use on juries in all manner of civil cases: We tell the jury they are the conscience of the community, and then look them straight in the eye and lie to them. They must never learn of insurance. Oh, if they learned the truth a plaintiff might be given too much money. That would be bad, we croak when no one is looking.

So instead we hide the truth from juries and call it justice. In Pottawattamie County that means prosecutors can lie, cheat and steal. And when they get caught, taxpayers can pay the damages. It's time for a new word in American life and culture. What do you say of a man or woman whose been snookered, made a fool of, treated as a fool, and then told that everything is fine? Why, the person's been pottawattamied, of course.

Hat tipe: Mike; http://www.omaha.com/article/20091231/NEWS01/701019961
Comments (2)
Posted on January 6, 2010 at 6:06 am by William Doriss
This can only be corrected through legislative act...
This can only be corrected through legislative action by the U.S. Congress or the Constitutional Amendment process. From an 'activist' point of view, these problems can be addressed through the press, through groups gathering together for a well-focused purpose and/or non-profits raising awareness through the expenditure of resources--and such measures as education at all levels. I personally would like to see a 'shadow court' which takes up cases alternatively to the ineffectual Supreme Court of the U.S. Much as the monetarists and neo-cons of the eighties set up a 'shadow Federal Reserve' to rankle the established Federal Reserve of the day which was perceived to be incorrect ineffectual.

To be sure, there are those of us who presently feel Ben Bernanke is, and Alan Greenspan was, ineffectual and incorrect. Notably, the congressman Ron Paul from Texas, a true parliamentarian and historian of the Fed.

Does anyone for one minute think that the S.C. ruling in Ricci will change anything? Not me. I believe the cities and states will continue doing what they are doing, ignoring willy-nilly the Constitutionally guaranteed and due-process protections for the citizenry, knowing full-well that they can get away with most anything, and that few if any civil lawsuits against their corrupt and incompetent officials will have legs. Look at the Kelo v. New London case, one of the most badly decided in recent history.

How can anyone respect the Supreme Court after Kelo? And no, ruling correctly in Ricci corrects nothing on the grand scale of things. The courts are simpley ineffectual, as Pres. Andrew Jackson observed 150 years ago. The more things change, the more they stay the same: continuous wars of agression abroad and wars against the weakest citizenry at home, and lying and finessing about it to the world.

Posted on January 6, 2010 at 5:54 am by William Doriss
I agree with your analysis of Pottawattamie and co...
I agree with your analysis of Pottawattamie and conclusions. However, you of all people know that the function of the courts is to 'dispose' of cases,... by hook or by crook. And it's easier when the cameras are not rolling and the press is absent.

This case most definitely raised one of the most important questions facing the judiciary in early 21st Century: Whether "prosecutors are immune from suit when they knowingly procured false testimony and then used it in the prosecution of an innocent man?" Nobody knows this issue better than me, and there are hundreds of us--probably hundreds of thousands of us--who have run into this brickwall of prosecutorial misconduct and malfeasance nationwide, to include Konnecticut.

In the dismissal of my case Doriss v. City of New Haven, State of CT, et al, 08-6378, the Court issued a pdf (which can be downloaded thru a google search); this document lists the dispositions of Supreme Court duly-docketed cases in numerical order. The cases dismissed were, one after another John Doe v. Tennessee, John Doe v. Alabama, John Doe v. Virginia, Indiana, Florida, Texas, and so on. Sometimes, DOC is appended after the name of the State. That would be 'Department of Correction' to the uninitiated.

In other words, in every session of the Supreme Court of the U.S., hundreds--thousands--of cases where an individual citizen or prisoner believes his case involves issues of Constitutional proportion which should rightfully be addressed, have their cases thrown out without so much as a hello or a goodbye.

You have the right to 'petition the sovereign for redress of grievances against the sovereign', but you do not have the 'right' to be 'heard'. It's a judicial sleight-of-hand of monstrous proportions. John E. Wolfgram, the activist attorney in California, has written extensively about this very issue--and been disbarred for his chutzpah in doing so.

It's a travesty and an abomination which the courts and the press, for the most part, have ignored and continue to ignore. One exception comes to mind that I recall: Rebecca Tuhus-Dubrow writes of these unresolved problems in the Ideas section of the Boston Globe, "Supreme Reforms: How the Nation's Highest Court Could be Improved," May 24, 2009. This well worth reading and contemplating. The Supreme Courts of the U.S., state and federal, simpley do not function well. It can be argued they do not function at all, in my humble opinion.

Being unrepresented by counsel, the City and State did not even respond to my own S.C. petition, thus signaling to the Court that my petition was entirely without merit. Apparently, the Court agreed. In Ricci v. DeStefanano (City of New Haven, actually), Frank Ricci and nineteen firefighters were represented by counsel. They got lucky, in my opinion. 7,930 other petitioners during that 08 session who felt they had 'substantive due process claims' were not so lucky. I was one of the unlucky ones in the 08 session, which does not mean that my claims against the City and State for egregious, outrageous Constitutional and due process rights violations ("so as to shock the conscience")--and similar claims by others--were invalid. It just meant that the court deemed itself simpley overburdened, and unwilling to tackle these troublesome issues which would no doubt open up a can of worms of epic proportions nationwide.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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