Originally Posted - February 11, 2007

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One of the most egregious cases of prosecutorial misconduct in the nation has been exposed in what has become known as the "Duke Case", a case in which three white lacrosse players from North Carolina's Duke University were accused of raping an African-American stripper at a team party.

The case immediately captivated the public's attention from the beginning as high profile sex cases tend to do but became an even bigger story when it was revealed that Durham County prosecutor Mike Nifong had withheld exculpatory evidence in the case which exonerated the three young men.

Nifong had rushed to judgment, indicting the three young men on rape charges, causing their suspension from the university.

"There's no doubt in my mind that she was raped and assaulted at this location", Nifong proclaimed on national TV and called the other lacrosse players "hooligans", saying they had aided, abetted or covered up for the alleged rapists.

There was a cover-up all right, only it was perpetrated by Nifong and a forensic expert who covered up the fact that crucial DNA evidence vindicated the three young men and established beyond all doubt that Nifong and the black woman had falsely accused them.

Nifong was forced to drop the rape charges in December when the woman changed her story but he unwisely forged ahead with charges of sexual assault and kidnapping.

And then "60 Minutes" broadcast for the nation an interview with the forensic investigator who testified that both he and Nifong knew, but didn't report, that no DNA of any of the accused was found in the accuser.

Sadly, the Duke case is not an isolated case of prosecutorial misconduct. Such misconduct has become pervasive in the nation by prosecutors pressured to obtain a conviction at any cost in high profile cases, to silence activists and whistleblowers with a wrongful conviction that will imprison them, discredit them and quash their charges of corruption that expose a system that's not only broken but increasingly more corrupt.

It's becoming known as the national game book, how to defuse and discourage activism and it's becoming more and more prevalent during the Bush Administration, Constitution be damned.

Anyone who dares to criticize the government and worse, has the evidence to prove wrongdoing in government, will likely find themselves the target of false allegations designed to both discredit them so no one gives credence to their accusations of corruption in government, and ultimately to silence them.

The mainstream media jumped on the Duke case for numerous reasons, unaware that they were going to have to publicize the egregious misconduct of the prosecutor.

The sad part is that Nifong is the rule rather than the exception. So why doesn't the media tell us about the pandemic of corruption that is sweeping our courts today?

Because if the public knew just how deep the roots of corruption are in this country, from the prosecution to the defense attorneys to the courts, the "justice" system would collapse. It's quickly becoming a myth.

It's the same premise as if the court system began enforcing the laws regarding the taking and filing of oaths of office by public officers the system would come to a screeching halt as the majority of judges have failed to file their oaths as required. The oath issue has become the system's "dirty little secret". One survey indicated that more than 90% of the judges in New York State will not legally in office, having vacated their office by operation of law because they failed to comply with the law, failed to file their oath of office. They remain on the bench without legal authority, claiming to be de facto officers when in reality, they are usurpers in office.

We have a court system sitting in judgment of us that have failed to comply with the law themselves and obstinately refuse to accept responsibility.

Sadly, the majority of people in this country buy into the premise that the court system works and that justice will be done, that there is justice for all, that all judges and prosecutors are honest and fair.

Not so as many learn as they became pawns in the system, caught up in family court or surrogates court, probate or are the target of a taking of property by government by eminent domain or a traffic cop who needs to meet a quota.

In one recent situation in upstate New York, a police officer testified under oath that he didn't want to arrest the person because no law had been broken but he had been ordered to do so by the sheriff, his superior and if he didn't make the arrest, he would have lost his job for insubordination. Exculpatory evidence was then erased from a video tape and the special prosecutor lied as did the witnesses, all for the sake of getting a wrongful conviction.

In the landmark Supreme Court case of Berger v. U.S. 295 U.S. 78, the court wrote, "The [prosecutor] 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".

Nifong struck foul blows and used improper methods calculated to produce a wrongful conviction by conspiring to hide exculpatory evidence in his zest to obtain a conviction, a conviction at any costs regardless of the legitimacy of the tactics, regardless of the truth.

Exculpatory evidence is evidence that can negate a defendant's guilt.

The same is happening throughout the country such as in the Elsebeth Baumgartner case in northern Ohio or in Warren County, NY, or in Clearwater, Fla., in the Michael Niesen (upper right) case. The lack of ethics and employment of personal ideological agendas caused the wrongful death of Terri Schiavo (center right) in Florida and almost killed Haleigh Poutre (bottom right), the 12-year-old Massachusetts girl in who had been beaten into a coma in 2005, allegedly by her adoptive mother and stepfather but the Department of Social Services claimed doctors had determined her injuries were self-inflicted. DSS tried to remove the girl from life support but after they convinced a court to allow them to kill her, she breathed on her own and began showing signs of responsiveness.

Now she can write part of her name, eat scrambled eggs and respond to commands.

The misconduct is prevalent in not only the criminal courts but in the civil, probate, family, surrogate courts of the nation, in the regulatory, administrative agencies, in the agencies that are supposed to be the watchdogs to police such wrongdoing. There is a growing distrust of the entire legal and judicial community nationwide. Judges, all "card-carrying lawyers" violate the statutes and canons with impunity while the disciplinary systems cover up for them.

In Florida, the disciplinary panel known as The Florida Bar is an arm of the Florida Supreme Court so it's a case of lawyers overseeing each other. As Florida attorney Jack Thompson has argued, The Florida Bar is unconstitutional as its "the wedding of all three functions of government…..the official arm of the Florida Supreme Court and violates the separation of powers".

Even so, being wholly unconstitutional, it continues as it does the misconduct throughout the nation, usually unchecked.

In Berger, the Supreme Court wrote that the "prosecuting attorney overstepped the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense is clearly shown by the record. He was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and, in general, of conducting himself in a thoroughly indecorous and improper manner..........The trial judge, it is true, sustained objections to some of the questions, insinuations and misstatements, and instructed the jury to disregard them. But the situation was one which called for stern rebuke and repressive measures and, perhaps, if these were not successful, for the granting of a mistrial. It is impossible to say that the evil influence upon the jury of these acts of misconduct was removed by such mild judicial action as was taken" http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?friend=nytimes&navby=case&court=us&vol=295&invol=78&pageno=88

The Berger case got to trial. In all too many cases, the defendant never gets his day in court because the prosecutor stacks the deck so high against him, creates so many lies and defense attorneys "go along to get along", taking the lucrative high road of encouraging their client to take a plea deal rather than challenge what they know to be wrongdoing and lies by police officers, witnesses and others in the case, at the risk of an additional 10 to 20 years tacked on to their sentence.

Prosecutorial misconduct can include suppression of exculpatory evidence, destruction of evidence, the use of unreliable and untruthful witnesses and informants and fabrication of evidence.

Overzealous and untruthful prosecutors with their eye more on their conviction rate and chances for a higher office, maybe even judicial office, are becoming more and more prevalent, flagrantly violating the laws that they supposedly took an oath to protect and defend.

The North Carolina State Bar has filed charges against Nifong, accusing him of withholding DNA evidence and misrepresenting the truth to the judge in the Duke case.

In Ohio, despite evidence of egregious prosecutorial misconduct by special prosecutor Daniel Kasaris in his overzealous prosecution of disbarred attorney and judicial whistleblower Elsebeth Baumgartner, there still have been no ethics charges lodged against him.

Instead, Kasaris and the system have gone full bore against Baumgartner trying to effect her silence, engaging in blatant misconduct and violations of her constitutional rights. He is still unable to produce evidence that he has filed an oath of office and bond as required by law.

Of course part of the reason may be Thomas Moyer, chief justice of the Ohio Supreme Court.

Baumgartner is now in a precarious situation with enough evidence given under sworn depositions in the past two weeks to prove that there was essentially a "judicial hit" out on her with one judge admitting under oath that he was specifically appointed by Chief Justice Moyer to handle high profile political cases such as Baumgartner's and in essence ordered to stifle her and insure a conviction.

That's becoming the norm in this country, dare to criticize the judiciary or file a complaint against them for misconduct with the disciplinary agency and you will be targeted for retaliation. That's supposed to send a message to others to shut their mouths, turn their heads because if you don't, it will become very difficult for you.

It's been concluded by the North Carolina state bar association that Nifong lied to the court. In the Baumgartner case, it appears that not only has Kasaris steadfastly lied to the court, but that the court in the persona of Judges Ronald Bowman, David Faulkner, Shirley Strickland Saffold and certainly Richard Markus knows that there have been numerous prosecutorial as well as judicial improprieties in the criminal charges brought against Baumgartner. They have improperly used the system to retaliate against her.

The egregious bias of the system precludes her from receiving any semblance of justice in northern Ohio, primarily due to the prosecutorial misconduct of Daniel Kasaris who is hell bent to get a conviction at any cost because the system cannot afford to admit that Baumgartner is right, that pervasive corruption exists in the criminal justice system in northern Ohio.

If anyone is in contempt of court, it's Daniel Kasaris for withholding exculpatory evidence and trying to coerce guilty pleas when knowing that that charges against Baumgartner have no legal basis and should never have been brought. Coercion by the prosecutor to force a guilty plea should be criminally prosecutable and he should be removed from office. It appears that it's been no holds barred to "get Baumgartner", to concoct charges against her, to unlawfully imprison her and attempt to break her down physically, emotionally and financially with false and malicious prosecutions, then block her every attempt from appellate review, denying her right to file criminal appeals, suspending habeas corpus and simply stonewalling her every effort for judicial review, coercing a plea that is totally involuntary, unwilling and illegal by threatening other action if she doesn't.

In the case of Baumgartner, Ottawa County Sheriff Robert Bratton has now reportedly admitted in a sworn deposition that he had no warrant to cause the arrest of Baumgartner in May, 2005 on charges of stealing her own vehicle and felony fleeing in Erie County.

He's claimed he had nothing to do with the arrests but he's the one who caused it, contacting Erie County after receiving a call from the jealous wife of Baumgartner's business partner, claiming he had a warrant for Baumgartner's arrest on a probation violation for essentially entering a courthouse to use a law library.

In essence, Bratton has lied for nearly two years about the existence of a warrant and Bay View Police Chief Helen Prosowski, a detective with the Sandusky Police Department, has also claimed to have had a warrant which would have given her the probable cause needed to stop, detain, seize and criminally charge Baumgartner. She can't produce a warrant either nor can she produce a copy of her department's federally mandated pursuit policy considering she had off-duty police officers pursuing Baumgartner in private vehicles.

Not only can she not produce the warrant, she claims it's for failing to appear, not a probation violation as Bratton and Kasaris have claimed. Bratton has been quoted as saying it "doesn't matter whether it's a good warrant or a bad warrant". Fact is, in order to have threatened Baumgartner with arrest, there had to be a warrant.

False arrest, malicious prosecution, wrongful imprisonment.

There is more than sufficient evidence and probable cause for the Department of Justice to initiate an investigation for egregious civil rights violations in the Baumgartner case as well as prosecutorial, police and judicial misconduct.

Christopher Slobogin penned an article about police perjury, published in the University of Colorado Law Review.

"O.J. Simpson's trial for the murders of Nicole Brown Simpson and Ronald Goldman provided the nation with at least two pristine examples of police perjury", Slobogin wrote. "First, there was the exposure of Detective Mark Fuhrman as a liar. While under oath at trial the detective firmly asserted, in response to F. Lee Bailey's questions, that he had not used the word "nigger" in the past decade. The McKinny tapes and assorted other witnesses made clear this statement was an untruth. That proof of perjury, together with the defense's innuendo that Fuhrman had planted a glove smeared with Nicole's blood on Simpson's property, severely damaged the prosecution's case.

"Second, and less well known, is Judge Lance Ito's finding that Detective Philip Vannatter had demonstrated a "reckless disregard for the truth" in the warrant application for the search of Simpson's house. Among other misrepresentations, Vannatter insinuated that Simpson had suddenly taken flight to Chicago when in fact police knew the trip had been planned for months, and unequivocally asserted that the substance found on Simpson's Bronco was blood when in fact it had not yet been tested".

Slobogin calls police perjury "testilying". In the case of Baumgartner, Kasaris has done his best to try and ensure that a jury never hears the evidence of misconduct, never hears the real facts. She was originally charged with and convicted of falsification for comments that she made at a public meeting. But she was wrongly charged. The falsification statute under which she was charged pertains solely to written statements made in a court proceeding.

The system has become so obsessed with getting Baumgartner at any cost, and other activist too, the players will do virtually anything, regardless of its' unconstitutionality or legally, to convict Baumgartner and keep her and other activists and whistleblowers who threaten their corrupt livelihood out of the way.

Since first appointed to the case in an illegal appointment by Kevin Baxter, Erie County prosecutor, Kasaris has creatively twisted the statutes to maliciously prosecute Baumgartner with the help of the court system, particularly the retired visiting judge system which, in the guise of Markus, has blocked her civilly as well as denied her judicial review of her criminal matters. Markus has declared her a vexatious litigator but while Markus, Kasaris and others have habitually claimed that her has filed false complaints, so far there has been no independent investigation and no proof that her claims are false except a denial by Markus, Baxter and others.

She has long claimed that Bratton acted in absence of a legal warrant and caused an false arrest and illegal incarceration. Now his sworn deposition in essence admits she was right.

In his law review article, Slobogin says that "Perhaps most importantly, police lying intended to convict someone, whether thought to be guilty or innocent, is wrong because once it is discovered, it diminishes one of our most crucial "social goods" - trust in government. First, of course, the exposure of police perjury damages the credibility of police testimony. As the aftermath of the Fuhrman debacle has shown, the revelation that some police routinely and casually lie under oath makes members of the public, including those who serve on juries, less willing to believe all police, truthful or not. One comment that a New York prosecutor made about the impact of the Simpson case illustrates the point: "Our prosecutors now have to begin their cases defending the cops. Prosecutors have to bring the jury around to the opinion that cops aren't lying. That's how much the landscape has changed."

"Police perjury can cause other systemic damage as well. Presumably, for instance, the loss of police credibility on the stand diminishes law enforcement's effectiveness in the streets. Most significantly, to the extent other actors, such as prosecutors and judges, are perceived to be ignoring or condoning police perjury, the loss of public trust may extend beyond law enforcement to the criminal justice system generally".

When the public is exposed to such blatant prosecutorial misconduct as demonstrated by Duke prosecutor Nifong and Baumgartner prosecutor Kasaris, there is a total loss of confidence in the criminal justice system. It's not only the police who are lying, but the prosecutors and judges too, creating an ever increasing loss of public trust.

The selective prosecution of Baumgartner is also evidenced as well as gender bias. Male attorneys aren't criminally charged for criticizing judges and alleging corruption. They are attacked with disciplinary actions, having their law licenses suspended or removed. Baumgartner has not only had her professional licenses revoked, both times without lawful hearing, but has been criminally charged and imprisoned and then denied her constitutionally guaranteed right to appeal, even unbelievably suspending habeas corpus.

There are a lot of innocent people in our jails and prisons today, forced to take a plea deal or risk being sentenced to an even longer term if they force their case to trial and lose. It's a fixed system where the judge and prosecutor control the odds and can usually get the defense attorney to play on their side.

And when the case is of a political nature, the government has a vested interest to insure the conviction of that person who is pointing the finger at them, exposing their unethical, immoral and illegal deeds whether it be fraudulent contracts, drug dealing or trafficking in kiddie porn. It's no holds barred in either manufacturing evidence and testimony or in many cases, withholding exculpatory evidence.

Desperate people do desperate things, especially when an outspoken critic, whether it be a lawyer, newspaper reporter or activist, have proof of governmental corruption.

Look at Nifong, desperate to achieve a conviction against three innocent white lacrosse players in order to try and save his career.

Look at Kasaris, under orders from the top to convict Baumgartner at any cost while hoping to move himself further up the ladder as a reward.

Whatever the excuse that motivates Nifong, Kasaris or hundreds of other prosecutors who play the game, prosecutorial misconduct does not equate with justice. The end does not justify the means.

While they may strike hard blows, they are not at liberty to strike foul ones.

The only difference shown so far between Nifong and Kasaris is that Nifong has been exposed and punished, thankfully before the three innocent men were convicted because of his misconduct.

So far, although it's known that some of the tactics engaged in by Kasaris are wrong and that he has knowingly proceeded with malicious prosecutions against Baumgartner while admitting he has no legal basis such as charging her with felony grand larceny for stealing her own corporate vehicle, so far Kasaris hasn't been held accountable for the illegal imprisonments of Baumgartner.

Yet.    2-11-07

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