June 19, 2007 03:02 PM UTC

Our Very Own Nifong?

• 7 Comments
• by: riogrande

(Note: The Cliff’s Notes version is here: http://www.coloradop….)

There is no question that Mike Nifong got what he deserved, for prosecuting an alleged “crime” for which he knew there was no credible evidence, due to the identities of the alleged victim and perps (and how the case might reflect on his political ambitions).  As the Supreme Court observed with respect to the conduct of a U.S. District Attorney:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. 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. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935) (emphasis added).

But what about the district attorney who refrains from prosecuting, owing to the identities of the perpetrators and the effects the case would have on his political ambitions?  Has he not committed an equally disbarrable act?

I would submit that Denver DA Mitch Morrissey is our very own Michael Nifong.

(Sure, this is long, but hey! You just can’t win for losing with the CourtWhores.  Whenever you provide copious cites and detail, they whine that you are being verbose.  OTOH, when you skip the presentation of a step or two in your thought process for purposes of brevity, they whine that your work is slipshod.) 

On October 17, 2005, the Colorado Supreme Court issued its opinion in the obscure case of Smith v. Mullarkey, 121 P.3d 890 (Colo. 2005) (per curiam), dismissing tort claims grounded in federal law on the ground of lack of jurisdiction.  What is unique about this case is that six of the defendants were the Justices themselves.

“No man may be judge in his own cause.”  This has been the law of our land since before the Pilgrims ever set eyes on Plymouth Rock.[4]  The reason has always been obvious: If a man would lose his house if he ruled in your favor, you can rest assured that he isn’t going to rule in your favor.  As the Colorado Supreme Court observed a century ago:

The first ideal in the administration of justice is that the judge must be free from bias and partiality.  Men are so agreed on this principle that any departure therefrom shocks their sense of justice.[5]

Whenever a judge places his finger on the scales of justice to benefit himself, it is not just a mere wrong; it is a crime under both federal [18 U.S.C. § 242] and state [C.R.S. § 18-8-404] law.  And when a crime has been committed, we reasonably expect public officials to prosecute the criminals.

State Law — Official Misconduct:

Under Colorado law, when a “public servant” “knowingly” commits “an act relating to his office” that constitutes an “unauthorized exercise of his official function” with the “intent to obtain a benefit” for himself, it is a crime punishable by up to a year’s imprisonment.  Hence, when a district attorney proves all five elements of this crime in a courtroom, incarceration ought to follow.

With respect to the Colorado Supreme Court justices deciding Smith v. Mullarkey, two of the elements are proven by definition.  After all, they are public servants as defined by law, and the issuance of judicial decisions is what judges do.  Likewise, whenever you extinguish a lawsuit asking monetary damages against you, you are obviously “obtaining a benefit for yourself.”

The United States Constitution declares that the laws of the United States are “the supreme Law of the Land; and that the Judges in every State shall be bound thereby.”  No exceptions.  Accordingly, no Colorado public servant can be legally authorized to commit a federal crime.  Thus, if you can show that an action by a public servant violated federal law, you have necessarily shown that it was an “unauthorized exercise of his official function.”

Finally, the prosecutor must show that the public servant knew what he was doing, which in the case of state supreme court justices, is almost a given.  They are supposed to be among the most competent of our public officials and certainly, among the most learned in the law.  Or to put it another way, if they honestly don’t know what they are doing, they should be removed from office immediately, as they post a danger to every citizen in this state.

Treason to the Constitution

18 U.S.C. Sec. 242 makes it a federal crime to willfully subject another to the deprivation of a federal right while acting under color of law.  The United States Supreme Court defined willfulness by stating that

willful violators of constitutional requirements, which have been defined, certainly are in no position to say that they had no adequate advance notice that they would be visited with punishment. When they act willfully in the sense in which we use the word, they act in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite.[10]

Once a federal “right has been defined and made specific by court decisions, the right is encompassed by § 242.”[11]  As such, the denial of that right is deemed as a matter of law to be willful.[12]

Next, we turn to what the Court’s action, and why it was legally wrong.  Specifically, they dismissed the case “due to lack of subject matter jurisdiction,” and this fact is of paramount legal importance.  The great Chief Justice Marshall described a judge’s willful refusal to take jurisdiction over a case he had a duty to hear as “treason to the constitution.”[13] and for utterly compelling reasons.  The right of access to the courts is “the right conservative of all other rights”[14];  If our government can do whatever it wants to you, and our courts can refuse to hear your grievances, then you don’t have any “rights” at all.

  The United States Supreme Court declared in the very year that Colorado became a state that federal civil rights claims must be heard in a state court of general jurisdiction.[15]  As this right has thus been “defined and made specific by court decisions,” an act in open defiance or reckless disregard of it necessarily precipitates criminal liability.The final element — whether the Colorado Supreme Court acted under “color of law” — is scarcely more than a formality. The Sixth Circuit explains:

An act is under color of law when it constitutes a “‘misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” “Under ‘color’ of law [also] means under ‘pretense’ of law.” “Acts of officers who undertake to perform their official duties are included….”[16]

Issuance of a judicial decision is necessarily done under pretense of law, irrespective of whether that judge has jurisdiction over the matter decided.  As such, the mere issuance of the decision in Smith v. Mullarkey constituted a federal crime.

For a judge to decide a case in which he has a financial interest, when other judges are available to hear it, is in itself a clear violation of federal law.  As the United States Supreme Court has said, it “certainly violates the Fourteenth Amendment … to subject [a man’s] liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.”[17]  It also violates state law: “Any judge who knows of circumstances which shall disqualify him in a case shall, on his own motion, disqualify himself.”[18]  Furthermore, by his own admission, Justice Bender knew that the circumstances in Smith v. Mullarkey demanded his recusal.  He writes (quoting both Colorado and Supreme Court cases):

Avoiding even the appearance of bias also serves to assure parties to particular cases that they are, indeed, receiving a fair trial.  “It is fundamental to the vitality of our judicial system that litigants believe in the fairness of the process. An unfavorable decision perceived to be the result of an impartial consideration may be bearable, but an unfavorable decision tainted by even the appearance of partiality cannot be condoned.”

I do not stand alone in my belief. The Due Process Clause of the Constitution safeguards the right to impartial judges and requires recusal of judges who are or who appear to be biased.  “[T]he Due Process Clause “may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way, `justice must satisfy the appearance of justice.'”  Consistent with this principle, a Colorado statute, procedural rules, and the Code of Judicial Conduct all provide guidelines to ensure that due process requirements are satisfied and that parties to civil and criminal cases are the beneficiaries of unassailably fair and impartial judges.[19]

“Guidelines” is unreasonably timid: C.R.S. § 16-6-201(2) states unequivocally that “Any judge who knows of circumstances which shall disqualify him in a case shall, on his own motion, disqualify himself.”  And in Smith v. Mullarkey, the Court openly admitted that it was “the defendant in this action.”  What it carefully elided, however, was the fact that six of the seven Justices were sued individually.  As the Wyoming Supreme Court observed, “It is certainly true that any active conduct or words, which tend to produce an erroneous impression, may amount to fraud, and half the truth may be a lie, in effect.”[20]

For Mitch Morrissey’s purposes, prosecuting this crime would even be easier than shooting fish in a barrel.  Every fact of legal consequence has been indelibly established in the public record.  Thus, the only conclusion that can reasonably be drawn is that the decision not to prosecute was made solely on the basis of the identities of the defendants: the same transgression for which Mike Nifong stands disbarred.

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Footnotes
[4] This rule was first established at common law in Bonham’s Case, 8 Co. Rep. 114a (C.P. 1610).

[20] Twing v. Schott, 338 P.2d 839, 843 (Wyo. 1959).
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Statutes:
— C.R.S. § 18-8-404:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States … shall be fined under this title or imprisoned not more than one year, or both;