Thursday, August 21, 2008

The Unfairness of Immunity

I was up in Ohio Monday to try a criminal case. The facts of this prosecution were pretty outrageous. A woman who had been a victim of domestic violence for a number of years had been charged with perjury after she recanted grand jury testimony. Of course, she recanted the testimony because he had been released from jail on a low bond (again) and continued to threaten both her and her children. The prosecutor dismissed the charges against him (even though there was some evidence other than her testimony) and filed charges against her.

One of the more outrageous aspects of this case is that the Ohio perjury statute requires two witnesses to testify that the statements made under oath were false. In this case, only two people were present during the assault, him and her. He did not testify in front of the grand jury and was never even put on the prosecution's witness list. Even if he had been - they had no second witness.

Then there is the fact that the prosecutor stated in front of the judge (at the final pre-trial two weeks ago) that he did not believe she committed perjury and that he believed her testimony before the grand jury to be true. Despite this, the prosecutor refused to dismiss the case (which under those facts should never have been filed) and the judge, when asked to dismiss the case at that point, also refused to do so.

It was only after I wrote, and my in-state counsel filed, a formal motion to dismiss containing all of this information that the prosecutor consented to dismissal.

Despite all of this, Ohio confers upon prosecutors and judges an absolute and unqualified immunity from suit for their actions. We ought to re-examine this policy. Shielding prosecutors from being held accountable for their actions is what leads to this kind of misconduct.

In any event, I am hoping the client accepts my advice to file complaints with the Ohio disciplinary counsel against the prosecutor (and perhaps the judge for another issue - an apparent ex-parte communication with the prosecutor that led to the judge making a decision adverse to the client). They are immune from suit, but perhaps the disciplinary counsel will take some action even if it is just a reprimand.


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