Terry L. Fesler
Three Rivers, Michigan 49093
269-273-2800
eslerf@gte.net
https://www.angelfire.com/mi/oaxamaxao/index.html
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October 23, 2003
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RE: IMMUNITIES - AN OPEN LETTER TO SENATOR ORRIN HATCH
This letter is posted to
the Internet at: https://www.angelfire.com/mi/oaxamaxao/hatch.html
Dear Senator Hatch,
As I have watched to Senate Confirmation hearings on the nomination of Judge Janice Rogers Brown I could not help but take notice of what issues have not been addressed. I was once employed to manage a law office for an attorney who specialized in child abuse cases. It has been most disturbing for me to discover the extent to which this nation's values and standards of conduct have declined. Judges have total immunity for the errors they may make while also having the same immunities for any intentional misconduct while they administer this public trust.
These immunities have slowly and quietly evolved over time and have been extended to prosecutors who are now also given wide discretionary authority to fabricate allegations, manufacture evidence, and even participate in instructing state's witnesses how to commit perjury against US citizen's accused of crimes the prosecutor knows are false. These prosecutors have totally immunity from civil lawsuits when prosecutors are caught applying these tactics against a citizen, or even in cases involving a child's welfare during child protective proceedings in courts which often involve federal funds from federal child welfare mandates.
In 1935, The United States Supreme Court addressed this issue: Berger
v. United States, 295 U.S. 78 (1935) http://laws.findlaw.com/us/295/78.html:
"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."
"We begin by discussing whether Lazarus was entitled to immunity from
Rowe's claims. A prosecutor is entitled to absolute immunity for all actions
he takes while performing his function as an advocate for the government.
Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct. 2606, 2615-16
(1993). The prosecutorial function includes the initiation and pursuit
of criminal prosecution, Imbler v. Pachtman, 424 U.S. 409, 424, 96 S.
Ct. 984, 992 (1976), and all appearances before the court, including
examining witnesses and presenting evidence. See Burns v. Reed, 500
U.S. 478, 492 111 S. Ct.. 1934, 1942 (1991). Under these principles,
it is clear that, even if Lazarus knowingly proffered perjured testimony
and fabricated exhibits at trial, he is entitled to absolute immunity from
liability for doing so."
"This Court has repeatedly declined to consider arguments not presented
at a lower level, including those relating to constitutional claims.
In re Forfeiture of Certain Personal Property, 441 Mich 77, 84; 490
NW2d 322 (1992). Moreover, the Michigan Court of Appeals "functions
as a court of review that is principally charged with the duty of correcting
errors" that occurred below and thus should decline to address unpreserved
issues. See Michigan Up & Out of Poverty Now Coalition v State
of Michigan, 210 Mich App 162, 167-168; 533 NW2d 339 (1995)."
What is very disturbing is that this truth is so outrageous and unbelievable that the ordinary citizen being informed of these policies is not likely to believe it, or even see a need to accurately verify it. The truth also is that the press and media have been suspiciously silent about these "new accepted standards of conduct."
Senator Hatch, I do know that you have the resources available to you
to independently verify the
accuracy of these current policies regarding immunities and I am asking
you to inquire into this as accurately as you are able in an honest administration
of the public trust and as a representative of the people. I am praying
that I am not the only citizen who would ask this of you. And I would like
to know your opinion on this issue. I am asking that you seek out the opinion
of those nominees who appear before the committee you preside over on behalf
of the nation for which you have a duty to faithfully administer the public
trust. I also believe that the public should know the opinion of the President
of the United States in this regard. Our nation's judges have adopted very
lenient policies for prosecutor and their own judicial misconduct.
Perhaps, most important of all, is your opinion on how these immunity policies significantly affect the rights of children who are "processed" through the child welfare system and the courts in the name of child welfare at taxpayer expense. Is it possible that you are not aware that far too many children's lives are being affected with serious negative consequences because a prosecutor, children's protective services, and the expert witnesses being used in these proceedings are allowed to do anything to win a case while a judge presides over these proceedings, even at the expense of the rights and welfare of a child?
Senator Hatch, are these the same standards which you would have your own children subjected to? And is it in the public interest not to inquire into these issues with those nominees for public service who appear before any judicial capacity, or as a US Attorney?
I can assure you that as a citizen I am extremely concerned about this issue.
Sincerely Yours,
Terry L. Fesler
Terry L. Fesler
