Judicial Mistakes


Judicial Mistakes

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Walk by Faith; Serve with Abandon

Expect to Win!

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The Advocacy Foundation, Inc.

Helping Individuals, Organizations & Communities

Achieve Their Full Potential

Since its founding in 2003, The Advocacy Foundation has become recognized as an effective

provider of support to those who receive our services, having real impact within the communities

we serve. We are currently engaged in community and faith-based collaborative initiatives,

having the overall objective of eradicating all forms of youth violence and correcting injustices

everywhere. In carrying-out these initiatives, we have adopted the evidence-based strategic

framework developed and implemented by the Office of Juvenile Justice & Delinquency

Prevention (OJJDP).

The stated objectives are:

1. Community Mobilization;

2. Social Intervention;

3. Provision of Opportunities;

4. Organizational Change and Development;

5. Suppression [of illegal activities].

Moreover, it is our most fundamental belief that in order to be effective, prevention and

intervention strategies must be Community Specific, Culturally Relevant, Evidence-Based, and

Collaborative. The Violence Prevention and Intervention programming we employ in

implementing this community-enhancing framework include the programs further described

throughout our publications, programs and special projects both domestically and



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Every publication in our many series’ is dedicated to everyone, absolutely everyone, who by

virtue of their calling and by Divine inspiration, direction and guidance, is on the battlefield dayafter-day

striving to follow God’s will and purpose for their lives. And this is with particular affinity

for those Spiritual warriors who are being transformed into excellence through daily academic,

professional, familial, and other challenges.

We pray that you will bear in mind:

Matthew 19:26 (NLT)

Jesus looked at them intently and said, “Humanly speaking, it is impossible.

But with God everything is possible.” (Emphasis added)

To all of us who daily look past our circumstances, and naysayers, to what the Lord says we will



- The Advocacy Foundation, Inc.

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The Transformative Justice Project

Eradicating Juvenile Delinquency Requires a Multi-Disciplinary Approach

The Juvenile Justice system is incredibly

overloaded, and Solutions-Based programs are

woefully underfunded. Our precious children,

therefore, particularly young people of color, often

get the “swift” version of justice whenever they

come into contact with the law.

Decisions to build prison facilities are often based

on elementary school test results, and our country

incarcerates more of its young than any other

nation on earth. So we at The Foundation labor to

pull our young people out of the “school to prison”

pipeline, and we then coordinate the efforts of the

legal, psychological, governmental and

educational professionals needed to bring an end

to delinquency.

We also educate families, police, local businesses,

elected officials, clergy, schools and other

stakeholders about transforming whole communities, and we labor to change their

thinking about the causes of delinquency with the goal of helping them embrace the

idea of restoration for the young people in our care who demonstrate repentance for

their mistakes.

The way we accomplish all this is a follows:

1. We vigorously advocate for charges reductions, wherever possible, in the

adjudicatory (court) process, with the ultimate goal of expungement or pardon, in

order to maximize the chances for our clients to graduate high school and

progress into college, military service or the workforce without the stigma of a

criminal record;

2. We then endeavor to enroll each young person into an Evidence-Based, Data-

Driven Transformative Justice program designed to facilitate their rehabilitation

and subsequent reintegration back into the community;

3. While those projects are operating, we conduct a wide variety of ComeUnity-

ReEngineering seminars and workshops on topics ranging from Juvenile Justice

to Parental Rights, to Domestic issues to Police friendly contacts, to Mental

Health intervention, to CBO and FBO accountability and compliance;

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4. Throughout the process, we encourage and maintain frequent personal contact

between all parties;

5 Throughout the process we conduct a continuum of events and fundraisers

designed to facilitate collaboration among professionals and community

stakeholders; and finally

6. 1 We disseminate Monthly and Quarterly publications, like our e-Advocate series

Newsletter and our e-Advocate Monthly and Quarterly Electronic Compilations to

all regular donors in order to facilitate a lifelong learning process on the everevolving

developments in both the Adult and Juvenile Justice systems.

And in addition to the help we provide for our young clients and their families, we also

facilitate Community Engagement through the Transformative Justice process,

thereby balancing the interests of local businesses, schools, clergy, social

organizations, elected officials, law enforcement entities, and other interested

stakeholders. Through these efforts, relationships are built, rebuilt and strengthened,

local businesses and communities are enhanced & protected from victimization, young

careers are developed, and our precious young people are kept out of the prison


Additionally, we develop Transformative “Void Resistance” (TVR) initiatives to elevate

concerns of our successes resulting in economic hardship for those employed by the

penal system.

TVR is an innovative-comprehensive process that works in conjunction with our

Transformative Justice initiatives to transition the original use and purpose of current

systems into positive social impact operations, which systematically retrains current

staff, renovates facilities, creates new employment opportunities, increases salaries and

is data-proven to enhance employee’s mental wellbeing and overall quality of life – an

exponential Transformative Social Impact benefit for ALL community stakeholders.

This is a massive undertaking, and we need all the help and financial support you can

give! We plan to help 75 young persons per quarter-year (aggregating to a total of 250

per year) in each jurisdiction we serve) at an average cost of under $2,500 per client,

per year. *

Thank you in advance for your support!

* FYI:

1 In addition to supporting our world-class programming and support services, all regular donors receive our Quarterly e-Newsletter

(The e-Advocate), as well as The e-Advocate Quarterly Magazine.

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1. The national average cost to taxpayers for minimum-security youth incarceration,

is around $43,000.00 per child, per year.

2. The average annual cost to taxpayers for maximum-security youth incarceration

is well over $148,000.00 per child, per year.

- (US News and World Report, December 9, 2014);

3. In every jurisdiction in the nation, the Plea Bargaining rate is above 99%.

The Judicial system engages in a tri-partite balancing task in every single one of these

matters, seeking to balance Rehabilitative Justice with Community Protection and

Judicial Economy, and, although the practitioners work very hard to achieve positive

outcomes, the scales are nowhere near balanced where people of color are involved.

We must reverse this trend, which is right now working very much against the best

interests of our young.

Our young people do not belong behind bars.

- Jack Johnson

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The Advocacy Foundation, Inc.

Helping Individuals, Organizations & Communities

Achieve Their Full Potential

…a compendium of works on

Judicial Mistakes

“Turning the Improbable Into the Exceptional”




Dea. John C Johnson III, J.D.

Founder & CEO

(878) 222-0450

Voice | Data | SMS


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Biblical Authority


Hebrews 4:12 (NASB)


For the word of God is living and active and sharper than any two-edged sword, and

piercing as far as the division of soul and spirit, of both joints and marrow, and able to

judge the thoughts and intentions of the heart.

Leviticus 19:15


‘You shall do no injustice in judgment; you shall not be partial to the poor nor defer to

the great, but you are to judge your neighbor fairly.

Deuteronomy 1:16


“Then I charged your judges at that time, saying, ‘Hear the casesbetween

your [a] fellow countrymen, and judge righteously between a man and his [b] fellow

countryman, or the alien who is with him.

Deuteronomy 16:18


“You shall appoint for yourself judges and officers in all your [a] towns which

the Lord your God is giving you, according to your tribes, and they shall judge the

people with righteous judgment.

Matthew 7:2


For in the way you judge, you will be judged; and [a] by your standard of measure, it will

be measured to you.

John 7:51


“Our Law does not judge a man unless it first hears from him and knows what he is

doing, does it?”

Zechariah 8:16


These are the things which you should do: speak the truth to one another; judge with

truth and judgment for peace in your [a] gates.

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Table of Contents

…a compilation of works on

Judicial Mistakes

Biblical Authority

I. Introduction: Fundamental Legal Errors..……………………………. 19

II. Judicial Landmines……….…...………………………………………… 23

III. Mistakes of Law …………………………………………………………. 33

IV. Miscarriages of Justice…………..……………………………………… 35

V. Actual Innocence………………………….…………………………….. 45

VI. Standards of Review…………….……………………………………… 51

VII. Judicial Misconduct……………….………………………………......... 57

VIII. Judicial Immunity………………………………………………………… 73

IX. References……………………………………………………............... 77



A. Trial Lawyers and The Biblical Basis for What We Do

B. Warren: Mistakes and Second Thoughts

C. The Line Between Legal Error and Judicial Misconduct

Copyright © 2003 – 2019 The Advocacy Foundation, Inc. All Rights Reserved.

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This work is not meant to be a piece of original academic

analysis, but rather draws very heavily on the work of

scholars in a diverse range of fields. All material drawn upon

is referenced appropriately.

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I. Introduction

Fundamental Legal Errors

Errors Of Various Types may occur in legal proceedings and may or may not

constitute grounds for appeal.

Types of Error

Harmless Error is one considered not to have affected the trial's outcome and

is thus not grounds for appeal. Harmless error is distinguished from "plain error"

in that if error is "preserved" by the making of a timely objection, the burden of

proof is on the respondent to show that the error was harmless, but if error was

not preserved, the burden of proof is on the appellant to show that the error was


Invited Error is error brought about by a party's own conduct during a trial,

and does not give grounds for appeal.

Reversible Error is one that can lead to a judgment being overturned on


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Fundamental Error is a legal term provided by United State Courts to describe

an error which occurs whenever a judgement violates a federal fundamental right.

In United States constitutional law, fundamental rights have special significance under

the U.S. Constitution. Those rights enumerated in the U.S. Constitution are recognized

as "fundamental" by the U.S. Supreme Court. State courts within the United States may

define fundamental error rules independently of the federal courts. State fundamental

error rules may include errors which violate rights in additional to those rights

guaranteed by the U.S. Constitution, but these rules may not infringe upon federal

fundamental rights. Any law restricting such a right must both serve a compelling state

purpose and be narrowly tailored to that compelling purpose.

Judicial Errors

A fundamental error is a type of legal or judicial error. A judicial error is a mistake by a

judge or court. If a majority of a reviewing court, such as an appellate court, finds an

error or errors which impacts the result, the higher court may reverse the lower court's

error in whole or in part (the entire judgment or a part of it), and remand (send it back)

with instructions to the lower court.

There are various types of errors which fall under two groups: harmless errors and plain

errors. Errors which have no prejudicial impact on the rights of a party are deemed

harmless errors. Higher courts will not reverse or remand the lower court's decision for

harmless errors. A plain error is an error that is obvious and affects "the fairness,

integrity or public reputation of judicial proceedings". Plain errors are typically reversible

errors. Higher courts will always reverse or remand the lower court's decision for

reversible errors.

Fundamental errors are both plain errors and reversible errors. Fundamental errors are

similar to substantial errors; however, the definition of a "substantial error" may differ

slightly among the courts. A fundamental error is consistent among all US Courts as

these errors violate the fundamental rights guaranteed by the US Constitution. In other

words, all substantial errors are not necessarily fundamental errors, but all fundamental

errors are substantial errors.

Errors Affecting Fundamental Rights

Courts often review questions of whether a fundamental error occurred in postconviction

proceedings, such as a direct appeal, the writ of habeas corpus or the writ

of coram nobis. Fundamental error, as a rule, is an extremely difficult claim to succeed

in an appeal. Congress and state legislatures may enact regulations on these

proceeding, such as time limits for the filing post-conviction motions, in efforts to reduce

judicial caseloads. In Murray v. Carrier, the Supreme Court ruled that the concept of

fundamental error applies to those cases in which the defendant was probably ...

actually innocent." The Court then specified that "in an extraordinary case, where a

constitutional violation has probably resulted in the conviction of one who is actually

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innocent, a federal habeas court may grant the writ even in the absence of a showing of

cause for the procedural default."

A petitioner may lose their chance to claim a violation of his or her Fundamental rights if

there is a procedural default on the claim. Some procedural defaults include

intentionally waiving their right to make the claim, or not filing the claim in a timely

manner. If state courts provide adequate means of challenging federal fundamental

errors, then a procedural default may not be appealed to a federal court. However, if

state courts do not provide adequate means of challenging the errors, then a federal

court has jurisdiction to hear the claim. The Supreme Court held in Coleman v.

Thompson that a petitioner who failed to comply with a timeliness requirement in a state

court could nevertheless plead their claims on the merits in federal court if he or she

could show that "failure to consider the claims [would] result in a fundamental

miscarriage of justice."

Application in United States Federal Case Law

A fundamental error occurs whenever a defendant was probably actually

innocent. In Murray v. Carrier, the Supreme Court ruled that the concept of

"fundamental miscarriage of justice" applies to those cases in which the defendant was

probably actually innocent." That concern is reflected, for example, in the "fundamental

value determination of our society that it is far worse to convict an innocent man than to

let a guilty man go free."

A fundamental error occurs whenever there is a failure to prove beyond a

reasonable doubt every element of the charged offense. In United States v.

McClelland, the United States Court of Appeals for the Ninth Circuit held that "the failure

to properly instruct the jury on [the required] element of a crime constitutes fundamental


A fundamental error occurs whenever a defendant stands convicted of conduct

that is not criminal. In United States v. Stoneman, the United States Court of Appeals

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for the Third Circuit found a fundamental error occurs where a defendant stands

convicted of conduct that is not criminal. If a defendant is convicted and punished for act

that law does not make criminal, it "inherently results in a complete miscarriage of

justice" and presents "exceptional circumstances" which justify collateral relief.

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Dedicated to the Training & Education of the Minnesota Trial Bench and Attorneys

Posted on November 26, 2013

WHAT IS A JUDICIAL LANDMINE? Judicial Landmines are common judicial mistakes

or oversights that create a high likelihood of triggering an appeal. These judicial

oversights tend to reoccur with every new generation of judges. Most of these mistakes

occur as a result of judicial omission or failing to make a proper record. The following is

a summary list of the 20 most common reoccurring Judicial Landmines.



Decision to testify or not testify should be on the record and should come expressly

from the defendant, not defense counsel. however, an on the record colloquy with

defendant who does not testify is not legally required. If no record is made, the

presumption is that waiver was voluntary and intelligent – but in a post-conviction

proceeding Defendant can rebut that presumption. State v. Walen, 563 N.W.2d 742,

751 (Minn. 1997); In re Welfare of C.J.W.J., 699 N.W.2d 328, 334 (Minn.App.2005)

(“We repeat this cautionary instruction. With adult defendants, and even more so with

juveniles, even after the attorney has laid the proper record, district courts should get

the defendant's personal acquiescence to the waiver on the record.”); The court should

NOT give CrimJig 3.17 (Defendants right not to testify) unless defendant, not defense

counsel, personally requests the instruction.

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Defendant’s right to a jury trial includes the right to be tried on each and every element

of the charged offense. In order to stipulate and waive trial on an element of the offense

the defendant must personally waive his trial right either orally or in writing. State v.

Bible, 2011 WL 691628, at 2 (Minn. App. Mar. 1, 2011) (unpublished opinion) (“The

defendant must make the waiver personally on the record in open court either orally or

in writing. It cannot be delegated to defendant’s counsel.”) See Judicial Training Update

11-15 (Judicial Mistake #1: When Defendants Stipulate To Element Of Offense);





Defendant MUST personally waive the right to jury trial. The waiver must come from the

defendant, not defense counsel. Strict compliance is required in order to assure that the

waiver is voluntarily and intelligently made. State v. Sandmoen, 390 N.W.2d 419, 423

(Minn. App. 1986); Minn. R. Crim. P. 26.01, subd. 1(2)(a); Minn. R. Crim. P. 20.01,

subd. 1(a).




If Defendant consents to a mistrial he waives any claim to double jeopardy. If Defendant

objects to a mistrial then jeopardy remains attached unless “manifest injustice” requires

the trial to be terminated. Manifest necessity is “an objective necessity apparent not only

to the district court but to any reviewing court.” The Court should consider less extreme

alternatives than a mistrial (i.e. fewer than 12 jurors, accepting a partial verdict,

additional instructions, etc.). State v. Hunter, 815 N.W.2d 518 (Minn.App.2012).


“Reducing the incidence of prosecutorial misconduct is a shared obligation and trial

courts have a duty to intervene and caution the prosecutor, even in the absence of

objection…..” State v. Ramey, 721 N.W.2d 294 (Minn. 2007); Judicial Training Update

10-14 (Prosecutorial Misconduct).


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The Court may not offer or promise the defendant an anticipated sentence that is not

part of an existing agreement between the defendant and the prosecutor. Anytime the

court improperly or excessively injects itself into plea negotiations the guilty plea is per

se invalid. The district court’s proper role is one of “discreet inquiry into the propriety of

the settlement submitted for judicial acceptance.” State v. Melde, A09-1050,

Minn.Ct.App. Feb 22, 2010 (Reversed and remanded because the court promised

defendant a prison sentence at the low end of the sentencing guidelines range.);

Judicial Training Update 10-4 (District Court & Plea Negotiations: How Far Is Too Far).








Minn. R. Crim. P. 15.01 (Guilty Plea advisory for felonies and gross misdemeanors);

Rule 15.02 (Guilty Plea advisory for misdemeanors); Judicial Training Update 10-15

(Requirements for an Alford Plea of Guilty); Judicial Training Update 10-16

(Requirements for Norgaard Plea of Guilty); Minn. R. Crim. P. 26.01, subds. 3 and 4;

State v. Theis, 742 N.W.2d 643 (Minn. 2007) (discussing the need for a proper factual


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Minnesota does not allow a defendant to make a conditional guilty plea. Prior to 1980, in

order to preserve the right to appeal a pretrial issue even when no other material facts

were in dispute, a criminal defendant was first required to plead “not guilty” and go

through a jury trial. Recognizing this was inefficient, the Supreme Court created a

procedure to preserve a defendant’s right to appeal a pretrial order and avoid an

otherwise unnecessary jury trial. State v. Lothenbach, 296 N.W.2d 854 (Minn.1980);

Minn R. Crim. P. 26.01 subd 3 and 4. Because this procedure involves a defendant’s

waiver of fundamental rights, failure to make a proper record could result in mandatory

reversal. There Are 7 Basic Steps To Every Lothenbach Plea/Stipulation. See Judicial

Training Update 10-11.

9. SPREIGL (Bad Acts) and JONES (Impeachment) FACTORS – INADEQUATE


1. SPREIGL: The Supreme Court has developed a five-step process to

determine whether to admit Spreigl evidence that MUST be addressed on

the record to support the court’s ruling. State v. Ness, 707 N.W.2d 676

(Minn. 2006); Judicial Training Update 12-4 (Spreigl Evidence – 5 Step



developed a balancing test and 5 specific findings (the Jones factors) that

MUST be addressed on the record to support the court’s ruling. See

Judicial Training Update 11-14 (Impeachment – Prior Felony Convictions);

State v. Jones, 271 N.W.2d 534 (Minn. 1978).

3. Although there is no absolute requirement that specific “findings” be made

on these issues, at least some disclosure that the court has considered

and weighed the components of those issues would help obviate appeals.

However, making specific “findings” is recommended as a Judicial Best





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Minn. R. Crim. P. 17.03, Subd. 5 sets out the procedure that the court MUST follow

before plea or trial when two or more defendants are jointly charged or will be tried

jointly, and two or more of them are represented by the same counsel.




When a criminal defendant asks to represent himself, the court must determine (1)

whether the request is clear, unequivocal, and timely, and (2) whether the defendant

knowingly and intelligently waives his right to counsel. State v. Richards, 456 N.W.2d

260, 263 (Minn. 1990). This constitutional requirement is satisfied when the trial court

informs the accused of the nature of the charges against him, of his right to be

counseled regarding his plea, and of the range of allowable punishments attendant

upon the entry of a guilty plea. Iowa v. Tovar, 541 U.S. 77, 81 (2004); In addition to

determining that a defendant who seeks to waive counsel is competent, a trial court

must satisfy itself that the waiver of his constitutional rights is knowing and voluntary.

State v. Camacho, 561 N.W.2d 160 (Minn. 1997) citing to Godinez v. Moran, 509

U.S. 389, 399, 400 (1993); State v. Kellogg, 2004 WL 422703, at 2 (Minn. Ct. App.

Mar. 9, 2004) (listing topics that the trial judge asked defendant about before allowing

him to proceed pro se); State v. Hawanchak, 669 N.W.2d 912, 915 (Minn. App. 2003)

(defendant’s right to counsel was violated when there was no record of a knowing and

intelligent waiver of his right to counsel); State v. Jones, 772 N.W.2d 496, 505 (Minn.

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2009) (Waiver of right to counsel by conduct applies to those defendants who voluntarily

engage in misconduct, knowing that they stand to lose the right to counsel, but who are

not affirmatively requesting to proceed pro se.);




The 6th and 14th amendments of the United States Constitution grant criminal

defendants the right to represent themselves in state court proceedings. When a

defendant asks to represent himself, it is incumbent on the trial court to conduct an

inquiry into the competency of the defendant to make a knowing and intelligent waiver

of his right to the assistance of counsel before permitting the defendant to proceed pro

se. State v. Bauer, 245 N.W.2d 848, 859 (1976); A violation of Defendant’s right to selfrepresentation

could result in reversal even without a showing of prejudice. The

Constitution permits states to insist upon representation by counsel for those competent

enough to stand trial but who still suffer from severe mental illness to the point where

they are not competent to conduct trial proceedings by themselves. Indiana v. Edwards,

554 U.S. 164, 178 (2008); State v. Richards, 456 N.W.2d 260, 263-5 (Minn. 1990);



Although the trial court has broad discretion to determine the scope of voir dire, it

cannot unreasonably and arbitrarily impose time limitations for voir dire. Limitations in

terms of time or content must be reasonable in light of the total circumstances of the

case. See State v. Petersen, 368 N.W.2d 320 (Minn.App.1985) (limiting each attorney

to five minutes for examination of each prospective juror was unreasonable –

Reversed); State v. Evans, 352 N.W.2d 824 (Minn.App.1984) (a one-hour cap on voir

dire is a per se reversible error jury violation). The Supreme Court Jury Task Force

Recommends Five Steps for the Court To Follow Before Placing Time Limits on Voir


1) Establish Actual Need;

2) Give Several Warnings;

3) Set Reasonable Time Limits;

4) Grant Reasonable Extensions;

5) Avoid Inappropriate Judicial Comments in Presence of Jury.


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Because of the prejudice involved in having a defendant shackled or otherwise

restrained, restraints MUST NOT be used “unless the trial judge has found such

restraint reasonably necessary to maintain order or security.” A trial judge who orders

such restraint shall state the reasons on the record outside the presence of the jury.”

The Supreme Court has approved a non-exclusive list of 9 factors to be considered in

making the decision of whether to restrain the defendant. See Judicial Training

Update 13-5 (Ordering Defendants To Wear Restraints During Trial); Rule 26.03, subd.

2(b), Rules of Criminal Procedure; State v. Jones, 678 N.W.2d 1 (Minn 2004);




Neither the state nor the defendant may make peremptory strikes on the basis of race

or gender. The Supreme Court has established a three-step analysis that the court

MUST follow to properly rule on a “Batson” challenge. See Judicial Training Update

13-2 (Jury Selection “Batson” Challenge). If the court erroneously denies a defendant’s

“Batson” challenge defendant is automatically entitled to a new trial. State v. Campbell,

772 N.W.2d 858 (Minn.App.2009); Minn. R. Crim. P. 26.02, Subd. 7.

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In all felony and gross misdemeanor cases, “[t]he defendant shall supply the

prosecuting attorney with the names and addresses of persons whom the defendant

intends to call as witnesses at the trial,” and “[t]he prosecuting attorney shall disclose to

defense counsel the names and addresses of the persons intended to be called as

witnesses at the trial.” Sanctions for a failure to disclose are at the trial court’s

discretion. There are three options:

(1) do nothing;

(2) grant opposing party a continuance; or

(3) preclude the witness from testifying.

Excluding the witness from testifying is the harshest sanction and should only be

ordered after the court has considered the following factors (commonly referred to as

the Lindsey factors):

(1) The reason why disclosure was not made (intentional or inadvertent);

(2) The extent of prejudice to the opposing party;

(3) The feasibility of rectifying that prejudice with a continuance.

State v. Lindsey, 284 N.W.2d 368 (Minn.1979). State v. Rasinski, 472 N.W.2d 645,

649 (Minn. 1991) (“Our cases may be read to condone the preclusion of a witness only

in extreme cases of violation of discovery rules by a defendant, where prejudice to

prosecution cannot be cured by any other means.”).




It is fundamental that all proceedings in the trial of a criminal case shall be open and

public and shall be conducted in the presence of defendant and counsel. The same is

true with respect to any communication between the judge and jury after the case is

submitted and the jury has begun deliberations. If the court needs to communicate with

the jury during deliberations the best practice is for the court to convene counsel and

the defendant in the courtroom and make a contemporaneous record of all

communications with the jury, both those that are housekeeping and those that are not,

so that the record for appeal is clear. In most cases, it is judicial error for the trial court

to communicate with the jury without notice to and outside the presence of defendant

and his counsel. State v. Kelley, 517 N.W.2d 905, 908 (Minn. 1994).

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a) If the court chooses NOT to decide an issue, the judge should, at a minimum,

provide an explanation (even a brief one) as to why the matter is not being

decided, or need not be decided (e.g., some other issue in the case is fully

dispositive of the action). For example: In re Estate of Eckley, 780 N.W.2d 407,

414-15 (Minn. App. 2010) Case remanded because Judge failed to consider

specific arguments clearly made by the parties; State v. Stanke, 764 N.W.2d

824, 828 (Minn. 2009) Failure to address severe aggravating factors in

sentencing ordinarily results in a remand to the District Court; State v. Jones,

772 N.W.2d 496, 508 (Minn. 2009) Noting that defendant’s application for

counsel was denied, but there were neither findings nor any explanation on the

record as to the “reasons for denying the application,” which made it “impossible

to apply an abuse-of-discretion standard of review of the Court’s denial.”



The court should NOT make findings of fact

on disputed material issues raised in a

motion for Summary Judgment. In addition,

the court should NOT resolve credibility

questions, draw inferences, or assess the

weight of the evidence. These are all

matters for the trier of fact and should not

be addressed by the court on Summary

Judgment. See Minn. Rule. Civ. Pro. 56.







1. REQUIRED FINDINGS OF FACT: This problem can occur in any trial or

contested hearing in which there are statutorily required findings of fact. Some

examples include failing to address all of the Austin factors in probation

revocation hearings, attorneys’ fees, juvenile and TPR cases, civil commitments,

the five Dahlberg factors for temporary restraining orders, and especially in

marriage dissolution and child custody matters. See Judicial Training Update 11-

8 (Probation Revocations – The Austin Factors); Update 13-3 (Post-Decree

Motions To Modify Custody Based On Endangerment); Edsten v. Edsten, 407

N.W.2d 102 (Minn.App.1987) (Trial court did not make the required findings, and

so we must reverse and remand for finding on the statutory factors.); In the

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Matter of the Welfare of N.T.K. 619 N.W.2d 209 (Minn.App.2000) (We have

repeatedly emphasized the importance of findings in our many published

decisions that hold inadequate juvenile disposition findings constitute reversible

error.); Crowley Company, Inc. v. Metropolitan Airports Commission, 394 N.W.2d

542 (Minn.App.1986) (The purpose of requiring findings is to permit meaningful

review upon appeal and it is therefore necessary that trials courts find facts and

state conclusions clearly and specifically).

2. CREDIBILITY CONFLICTS IN EVIDENCE: The court should avoid “findings” that

simply describe what the conflicting testimony was without resolving the conflict.

The Court may make specific credibility findings (although these are not

required), or it may simply indicate which version it found persuasive. No special

wording is required as long as the Court can get beyond the descriptive and into

the evaluative.

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III. Mistakes of Law

Mistake of Law is a legal principle referring to one or more errors that were made by a

person in understanding how the applicable law applied to their past activity that is

under analysis by a court. In jurisdictions that use the term, it is differentiated

from mistake of fact.

There is a principle of law that "ignorance of the law is no excuse". In criminal cases, a

mistake of law is not a recognized defense, though such a mistake may in very rare

instances fall under the legal category of "exculpation". In criminal cases a mistake of

fact is normally called simply, "mistake".

General Principles

Usually, there is in legal cases an irrebuttable presumption that people who are about to

engage in an activity will comply with applicable law. As part of the rule of law, the law is

assumed to be made available to everyone. The presumption of knowledge of

applicable law generally will also apply in the situation of a recent change in the law with

which a party in a legal case had no opportunity to become aware of it, e.g. the accused

was out hunting in the wilderness and did not know that the law had changed to protect

an endangered species.

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Some states make a distinction between a mistake as to the substance and effect of

existing laws, and a mistake that the law creates a specific right to act in the particular

way. For example, if A, the owner of a vehicle, takes it into a garage for repair and when

returning to collect it, A finds that the vehicle has been left parked in the street. If he has

an honest belief that he has the right as an owner to retake possession of the vehicle

without paying the outstanding bill for the repairs, he will not be considered as stealing it

despite the fact that the garage holds a lien over the vehicle and so has the better right

to possession until the bill is paid. This form of the defense is difficult to prove because

the defendant must be able to prove that he believed in something more positive than

the law permitted the particular behavior. The belief must be that the law creates and

vests a specific right to act in that way. Under the Theft Act 1968 and the Criminal

Damage Act 1971, a defense will arise if the defendant honestly believes that he is

entitled to act in the way he did and this will negate the relevant mens rea element (e.g.

of dishonesty under §2 Theft Act 1968). In Chamberlain v Lindon, 1998 Lindon

demolished a wall to protect a right-of-way, despite allowing nine months to pass before

acting, Lindon honestly believed that it was immediately necessary to protect his legal

rights without having to resort to civil litigation. For the purposes of §5(2):

it is not necessary to decide whether Lindon’s action was justified as a matter of civil law.

For the purpose of the criminal law, what matters is whether Lindon believed that his

actions were reasonable, i.e. a subjective test.

Thus a lawful excuse may be acknowledged by a court to arise when a person honestly

but mistakenly believes that the actions are necessary and reasonable.

Mistake of Non-Governing Law In The United States

One narrow area of exception occurs where a person makes a mistake of nongoverning

law. While the accused are not pardoned for failure to know what acts have

been deemed criminal, they may not be held to know of non-criminal provisions that

affect the status of things that might therefore be deemed criminal. For example,

suppose Jennifer is married to Phillip, but decides to get a divorce in order to marry

Ben. However, Jennifer mistakenly believes that the divorce was final when she

submitted the paperwork required by the state, and did not realize that she had to wait

for a court to pronounce her divorced. In the interim, she marries Ben, and so is

technically committing bigamy because she has married a second man before her

divorce from the first was complete. Jennifer's mistake was not one of governing law

(she did not mistakenly believe it was legal to be married to two people), but rather a

mistake of non-governing law, which is akin to a mistake of fact. Depending on the

jurisdiction in which the act took place, Jennifer may be allowed to raise the defense of

mistake of law in such a scenario. See Long v. State, 44 Del. 262.

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IV. Miscarriages of Justice

A Miscarriage of Justice, also known as a failure of justice, is when an actually

innocent person is found guilty. It is seldom used as

a legal defense in criminal and deportation proceedings. The term also applies to errors

in the other direction—"errors of impunity", or to any clearly unjust outcome in any civil

case. Every "miscarriage of justice" in turn is a "manifest injustice." Most criminal justice

systems have some means to overturn or quash a wrongful conviction, but this is often

difficult to achieve. In some instances a wrongful conviction is not overturned for several

decades, or until after the innocent person has been executed, released from custody,

or has died.

"Miscarriage of justice" is sometimes used to describe any wrongful conviction, even

when the defendant may be guilty, for example in reference to a conviction reached as

the result of an unfair or disputed trial. While a miscarriage of justice is a Type I error for

falsely identifying culpability, an error of impunity would be a Type II error of failing to

find a culpable person guilty. However, the term "miscarriage of justice" is often used to

describe the latter type as well. With capital punishment decreasing, the expression has

acquired an extended meaning, namely any conviction for a crime not committed by the

convicted person.

Wrongful convictions are frequently cited by death penalty opponents as cause to

eliminate death penalties to avoid executing innocent persons. In recent years, DNA

evidence has been used to clear many people falsely convicted.

The term travesty of justice is sometimes used for a gross, deliberate miscarriage of

justice. Show trials (not in the sense of high publicity, but in the sense of lack of regard

to the actual legal procedure and fairness), due to their character, often lead to such


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The concept of miscarriage of justice has important implications for standard of review,

in that an appellate court will often only exercise its discretion to correct a plain

error when a miscarriage of justice (or "manifest injustice") would otherwise occur.

The Scandinavian languages (viz. Danish, Norwegian and Swedish) have a word, the

Swedish variant of which is justitiemord, which literally translates as "justice

murder". Slavic languages use a different word (e.g., justičná vražda in Slovak, justiční

vražda in Czech), but it is used for judicial murder, while miscarriage of justice is

"justiční omyl" in Czech, implying an error of the justice system, not a deliberate

manipulation. The term was originally used for cases where the accused was convicted,

executed, and later cleared after death.

General Issues

Causes of miscarriages of justice include:

Plea bargains that offer incentives for the innocent to plead guilty, sometimes

called an innocent prisoner's dilemma

Confirmation bias on the part of investigators

Withholding or destruction of evidence by police or prosecution

Fabrication of evidence or outright perjury by police (see testifying), or

prosecution witnesses (e.g., Charles Randal Smith)

Biased editing of evidence

Prejudice against the class of people to which the defendant belongs

Misidentification of the perpetrator by witnesses and/or victims

Overestimation/underestimation of the evidential value of expert testimony

Contaminated evidence

Faulty forensic tests

False confessions due to police pressure or psychological weakness

Misdirection of a jury by a judge during trial

Perjured evidence by the real guilty party or their accomplices (frameup)

Perjured evidence by the alleged victim or their accomplices

Conspiracy between court of appeal judges and prosecutors to uphold conviction

of the innocent

Fraudulent conduct by a judge: Judicial Misconduct

A risk of miscarriages of justice is one of the main arguments against the death penalty.

Where condemned persons are executed promptly after conviction, the most significant

effect of a miscarriage of justice is irreversible. Wrongly executed people nevertheless

occasionally receive posthumous pardons—which essentially void the conviction—or

have their convictions quashed. Many death penalty states hold condemned persons for

ten or more years before execution, so that any new evidence that might acquit them

(or, at least, provide reasonable doubt) will have had time to surface.

Even when a wrongly convicted person is not executed, years in prison can have a

substantial, irreversible effect on the person and their family. The risk of miscarriage of

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justice is therefore also an argument against long sentences, like a life sentence, and

cruel prison conditions.

Rate of Occurrence

Various studies estimate that in the United States, between 2.3 and 5% of all prisoners

are innocent. One study estimated that up to 10,000 people may be wrongfully

convicted of serious crimes each year.

A 2014 study estimated that 4.1% of inmates awaiting execution on death row in the

United States are innocent, and that at least 340 innocent people may have been

executed since 1973.

According to Professor Boaz Sangero of the College of Law and Business in Ramat

Gan in Israel, most wrongful convictions are for crimes less serious than major felonies

such as rape and murder, as judicial systems are less careful in dealing with those


Cultural Consequences

Wrongful convictions appear at first to be "rightful" arrests and subsequent convictions,

and also include a public statement about a particular crime having occurred, as well as

a particular individual or individuals having committed that crime. If the conviction turns

out to be a miscarriage of justice, then one or both of these statements is ultimately

deemed to be false. During this time between the miscarriage of justice and its

correction, the public holds false beliefs about the occurrence of a crime, the perpetrator

of a crime, or both. While the public audience of a miscarriage of justice certainly varies,

they may in some cases be as large as an entire nation or multitude of nations.

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In cases where a large-scale audience is unknowingly witness to a miscarriage of

justice, the news-consuming public may develop false beliefs about the nature of crime

itself. It may also cause the public to falsely believe that certain types of crime exist, or

that certain types of people tend to commit these crimes, or that certain crimes are more

commonly prevalent than they actually are. Thus, wrongful convictions can ultimately

mold a society's popular beliefs about crime. Because our understanding of crime is

socially constructed, it has been shaped by many factors other than its actual


Mass media may also be faulted for distorting the public perception of crime by overrepresenting

certain races and genders as criminals and victims, and for highlighting

more sensational and invigorating types of crimes as being more newsworthy. The way

a media presents crime-related issues may have an influence not only on a society's

fear of crime but also on its beliefs about the causes of criminal behavior and desirability

of one or another approach to crime control. Ultimately, this may have a significant

impact on critical public beliefs about emerging forms of crime such as cybercrime,

global crime, and terrorism.

There are unfavorable psychological effects, even in the absence of any public

knowledge. In an experiment, participants significantly reduced their pro-social behavior

after being wrongfully sanctioned. As a consequence there were negative effects for the

entire group. The extent of wrongful sanctions varies between societies.


Cases in Specific Countries

In 1959, 14-year-old Steven Truscott was convicted of raping and murdering a 12-yearold

girl. Originally sentenced to death by hanging, his sentence was commuted to life

imprisonment. He was released on parole in 1969, and was freed from his parole

restrictions in 1974. In 2007, the Ontario Court of Appeal overturned Truscott's

conviction, based on a reexamination of forensic evidence. The government of Ontario

awarded him $6.5 million in compensation.

In 1972, Donald Marshall Jr., a Mi'kmaq man, was wrongly convicted of murder.

Marshall spent 11 years in jail before being acquitted in 1983. The case inspired a

number of questions about the fairness of the Canadian justice system, especially given

that Marshall was an Aboriginal: as the Canadian Broadcasting Corporation put it, "The

name Donald Marshall is almost synonymous with 'wrongful conviction' and the fight for

native justice in Canada." Marshall received a lifetime pension of $1.5 million in

compensation and his conviction resulted in changes to the Canada Evidence Act so

that any evidence obtained by the prosecution must be presented to the defense on


In 1970, David Milgaard was wrongfully convicted for the rape and murder of Gail

Miller. He was released in 1992 and compensated $10 million by the Saskatchewan

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government after having spent 23 years in prison. After being tied to it by DNA

evidence, serial rapist Larry Fisher was convicted of the murder in 1999.

In 1992, Guy Paul Morin was convicted of the 1984 rape and murder of an 8-year-old

girl and was sentenced to life imprisonment. In 1995, new testing of DNA evidence

showed Morin could not have been the murderer, and the Ontario Court of Appeal

overturned his conviction. The case has been described as "a compendium of official

error – from inaccurate eyewitness testimony and police tunnel vision, to scientific

bungling and the suppression of evidence." Morin received $1.25 million in

compensation from the Ontario government.


Enzo Tortora, a TV host on

national RAI television, was

accused of being a member

of the Camorra and drug

trafficking. He was arrested in

1983, and sentenced to ten

years in jail in 1985, but

acquitted of all charges on

appeal in 1986.

Raffaele Sollecito and

American Amanda Knox were

sentenced to 26 years

imprisonment for the

2007 Murder of Meredith

Kercher. They were released in 2011 after an appeal court found there was no credible

evidence against them. Petty burglar Rudy Guede has been convicted of murder and

sexual assault in connection with the death of Ms. Kercher.

The Netherlands

The Schiedammerpark murder case, as well as the similarly overturned case of the

Putten murder, led to the installation of the "Posthumus I committee", which analyzed

what had gone wrong in the Schiedammer park Murder case, and came to the

conclusion that confirmation bias led the police to ignore and misinterpret scientific

evidence (DNA). Subsequently, the so-called Posthumus II committee investigated

whether other such cases might have occurred. The committee received 25 applications

from concerned and involved scientists, and decided to consider three of them further:

the Lucia de Berk case, the Ina Post case, and the Enschede incest case. In these

three cases, independent researchers (professors Wagenaar, van Koppen, Israëls,

Crombag, and Derksen) claim confirmation bias and misuse of complex scientific

evidence led to miscarriages of justice.

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Norwegian police, courts, and prison authorities have been criticized and convicted on

several occasions by the European Court of Human Rights for breaking the principle

of innocent until proven guilty. However, the maximum penalty in Norway is normally no

longer than 21 years. Thereby, most of the victims have been acquitted after their

release from prison.


On December 31, 1996 in Miłoszyce, Poland, a 15-year-old girl was brutally raped and

murdered. Tomasz Komenda, then 21, was arrested. He pleaded guilty and was

sentenced to 25 years imprisonment. Komenda was regularly abused by fellow

prisoners and guards, he tried to commit suicide 3 times. In 2018 when new evidence

came out, Komenda was paroled and in May 2018 his conviction was overturned and

Komenda was officially exonerated by the Supreme Court of Poland. He and his

barrister stated, that they would demand 18 000 000 PLN compensation.


The Constitution of Spain guarantees compensation in cases of miscarriage of justice.

United Kingdom

In the United Kingdom a jailed person, whose conviction is quashed, might be

paid compensation for the time they were incarcerated. This is currently limited by

statute to a maximum sum of £1,000,000 for those who have been incarcerated for

more than ten years and £500,000 for any other cases, with deductions for the cost of

food and prison cell during that time. See also Overturned convictions in the United


Richard Foster, the Chairman of the Criminal Cases Review Commission (CCRC),

reported in October 2018 that the single biggest cause of miscarriage of justice was the

failure to disclose vital evidence.

England, Wales and Northern Ireland

Until 2005, the parole system assumed all convicted persons were guilty, and poorly

handled those who were not. To be paroled, a convicted person had to sign a document

in which, among other things, they confessed to the crime for which they were

convicted. Someone who refused to sign this declaration spent longer in jail than

someone who signed it. Some wrongly convicted people, such as the Birmingham Six,

were refused parole for this reason. In 2005 the system changed, and began to parole

prisoners who never admitted guilt.

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English law has no official means of correcting a "perverse" verdict (conviction of a

defendant on the basis of insufficient evidence). Appeals are based exclusively on new

evidence or errors by the judge or prosecution (but not the defense), or jury

irregularities. A reversal occurred, however, in the 1930s when William Herbert

Wallace was exonerated of the murder of his wife. There is no right to a trial without jury

(except during the troubles in Northern Ireland or in the case where there is a significant

risk of jury-tampering, such as organized crime cases, when a judge or judges presided

without a jury).

During the early 1990s, a

series of high-profile cases

turned out to be miscarriages

of justice. Many resulted from

police fabricating evidence to

convict people they thought

were guilty, or simply to get a

high conviction rate.

The West Midlands Serious

Crime Squad became

notorious for such practices,

and was disbanded in 1989.

In 1997 the Criminal Cases

Review Commission was

established specifically to

examine possible miscarriages of justice. However, it still requires either strong new

evidence of innocence, or new proof of a legal error by the judge or prosecution. For

example, merely insisting you are innocent and the jury made an error, or stating there

was not enough evidence to prove guilt, is not enough. It is not possible to question the

jury's decision or query on what matters it was based. The waiting list for cases to be

considered for review is at least two years on average.

In 2002, the NI Court of Appeal made an exception to who could avail of the right to a

fair trial in R v Walsh: "... if a defendant has been denied a fair trial it will almost be

inevitable that the conviction will be regarded unsafe, the present case in our view

constitutes an exception to the general rule. ... the conviction is to be regarded as safe,

even if a breach of Article 6(1) were held to have occurred in the present

case." (See Christy Walsh (Case).)


The Criminal Appeal (Scotland) Act 1927 increased the jurisdiction of the Scottish Court

of Criminal Appeal following the miscarriage of justice surrounding the Trial of Oscar


Reflecting Scotland's own legal system, which differs from that of the rest of the United

Kingdom, the Scottish Criminal Cases Review Commission (SCCRC) was established

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in April 1999. All cases accepted by the SCCRC are subjected to a robust and

thoroughly impartial review before a decision on whether or not to refer to the High

Court of Justiciary is taken.

United States

In June 2012, the National Registry of Exonerations, a joint project of the University of

Michigan Law School and Northwestern University Law School, initially reported 873

individual exonerations in the U.S. from January 1989 through February 2012; the

report called this number "tiny" in a country with 2.3 million people in prisons and jails,

but asserted that there are far more false convictions than exonerations. By 2015, the

number of individual exonerations was reported as 1,733, with 2015 having the highest

annual number of exonerations since 1989.

In the case of Joseph Roger O'Dell III, executed in Virginia in 1997 for a rape and

murder, a prosecuting attorney bluntly argued in court in 1998 that if posthumous DNA

results exonerated O'Dell, "it would be shouted from the rooftops that ... Virginia

executed an innocent man." The state prevailed, and the evidence was destroyed.

In 2013, in Massachusetts, a chemist admitted to tampering with evidence and falsifying

results regarding over 21,000 drug convictions from 2004 to 2013 by not undertaking

tests and stating untested results were positive for illegal drugs.

At least 21 states in the US do not offer compensation for wrongful imprisonment.

Specific Cases

David Bain

David Camm

Deventer murder case

Timothy Evans

Ryan Ferguson

Amanda Knox

Debra Milke

Chantal McCorkle

Vincent Simmons

Teresa de Simone – The longest case of miscarriage of justice in British law.

Christy Walsh case

General Concepts

Error of impunity

False accusations

False allegation of child sexual abuse

False confession


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Innocent prisoner's dilemma

Innocence Project

Legal abuse

Perverting the course of justice

Police misconduct

Presumption of guilt

District Attorney

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Page 44 of 166

V. Actual Innocence

Actual Innocence, also known as plain error, is a special standard of review in legal

cases to prove that a charged defendant did not commit the crime(s) that he or she is

accused of, which is often applied by appellate courts to prevent a miscarriage of

justice. What makes the actual innocence standard interesting is that it may

be invoked at any time, and not only in criminal proceedings but also in immigration and

other civil proceedings.

Overview Of Claims of "Actual Innocence"

In its most literal sense, "actual innocence"—more properly understood as a claim that

the prosecution has failed to prove factual guilt beyond a reasonable doubt—is a very

commonly raised defense to a crime. Claims of actual innocence may involve disputing

that any crime occurred at all, or that the accused was the perpetrator of the criminal

act. Arguably, even affirmative defenses such as "self-defense", insanity, or "mistake of

fact" qualify as "actual innocence" claims because while in those cases the accused

admits to both his or her identity as the actor and to the existence of the act ("actus

reus"), he or she is claiming that the State cannot prove that he or she had the requisite

mental state ("mens rea") to constitute a crime.

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However, the specific term "actual innocence" is most often used in the context of

someone convicted for a crime he or she did not commit. Claims of "actual innocence"

are, in that sense, usually raised in post-conviction challenges to a conviction. The

Tarlton Law Library at the University of Texas at Austin maintains an "Actual Innocence

awareness database" containing "resources pertaining to wrongful convictions, selected

from the popular media (such as newspaper articles and segments which aired on

television news magazines), journal articles, books, reports, legislation and websites".

In the United States, establishing "actual innocence" after a conviction may be

considerably more difficult than winning an acquittal at trial, however. At trial, the

defendant enjoys a due process right to the presumption of innocence, and the State is

obligated to prove the guilt of the accused beyond a reasonable doubt. See,

e.g., Cochran v. United States, 157 U.S. 286, 299 (1895). However, "innocence" is a

factual question, and once a fact-finder—judge or jury—makes a factual determination,

appellate and post-conviction courts generally are bound by those factual

determinations. Appeals and post-conviction cases, by their very nature, focus on legal

errors, not factual disputes. Indeed, it is unclear whether proof of actual innocence is, in

and of itself, grounds for appellate reversal. Herrera v. Collins, 506 U.S. 390 (1993).

A convicted person has two avenues for attacking the validity of his or her conviction

and/or sentence. The first is direct appeal. Direct appeals are limited in number and

scope, and address only those issues raised in the lower court. The second method of

attacking the validity of a conviction is known as "collateral" review, and can take many

forms, including state and federal petitions for writs of habeas corpus, petitions for writs

of error coram nobis, and—increasingly—a newly developed form of collateral relief

which allows petitioners to raise claims of actual innocence, whether through DNA

testing or through some other method. Thus, it is in collateral, post-conviction filings that

claims of actual innocence are most likely to be considered.

The Typical Innocence Defense

Because the prosecution must prove guilt beyond a reasonable doubt, a defendant

asserting actual innocence need only raise a reasonable doubt as to whether they were

the person who committed a particular crime, or whether the acts that they committed

amount to the commission of a crime. In point of fact, the defendant is not obliged to

present a defense at all.

Examples of an actual innocence defense include:

Alibi – the defendant will present evidence of having been in a different location

at the time the act occurred, thereby making it impossible for the defendant to

have committed the crime.

Mistaken Identity – although the prosecution bears the burden of proving that a

defendant has been properly identified, the defendant may still need to call into

question the memory and/or credibility of witnesses claiming to have seen the

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commission of the crime. Alibi and/or mistaken identity defenses constitute

"agency" defense—an argument that the accused is not the criminal agent.

Frame-Up – the defendant will assert that falsification of evidence has resulted in

the creation of a meritless case against him or her, usually by the police or

similar persons of authority with access to the crime scene, or by private parties

hoping to profit from the defendant's misfortune. If the prosecution is relying on

the defendant's confession, the defendant may assert that a false confession was

extracted through coercive means.

Many celebrated criminal cases have rested solely on the defense

that the defendant did not commit the crime—for

example, O.J. Simpson, Robert Blake, and Michael

Jackson all claimed that they simply had not committed

the acts charged. By contrast, defendants such

as Jeffrey Dahmer, Susan Smith, and Lorena

Bobbitt conceded that they committed the criminal

act, but raised defenses such as insanity or

diminished capacity. Other defendants, such

as George Zimmerman, conceded that the act was

committed, but asserted that it was justified, and

therefore not a crime.

"Actual Innocence" Pleas In Post-Conviction

Collateral Proceedings

Because most forms of post-conviction collateral relief are limited

to procedural or Constitutional flaws in the trial itself, claims of "actual innocence"

generally are recognized only in those states which have adopted specific "actual

innocence" statutes. Otherwise, in order to obtain post-conviction collateral relief, a

defendant must often plead a specific statutory grounds for relief, i.e., that the conviction

was obtained in violation of the Constitution of the United States. In jurisdictions that

restrict a court's power to hear a post-conviction petition to a time period defined by

statute, the court cannot grant post-conviction relief upon expiration of the time period

regardless of the discovery of proof of "actual innocence" of the crime for which he was

convicted. The jurisdictional bar is often rationalized by citing the requirement

of finality of the judicial process in order to maintain the integrity of the system. While

some argue that this is unjust for the convicted, it is rationalized that continued specter

of "actual innocence" after the conclusion of a trial would make the adjudication process

moot, which may lead to rule of law problems.

In the United States, this tradition has been heavily revised. As DNA testing grew more

sophisticated, every state adopted statutes or rules allowing newly discovered DNA

results to form the basis of a challenge to a conviction on grounds of "actual innocence".

The scope and breadth of an inmate's ability to bring a DNA-based claim of actual

innocence varies greatly from state to state. The Supreme Court has ruled that

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convicted persons do not have a constitutional due process right to bring DNA-based

post-conviction "actual innocence" claims. District Attorney's Office v. Osborne, 557

U.S. 52 (2009). Thus, the way such claims are handled may vary greatly from one

jurisdiction to the next.

Following reports of a sizable number of DNA-based exonerations, some states also

have adopted broader "actual innocence" statutes allowing post-conviction challenges

on the basis of newly discovered evidence in general. The Commonwealth of Virginia

adopted such a law in 2004, subjecting petitioners to a very high standard of proof to

overturn a conviction: that "the previously unknown or unavailable evidence is material

and, when considered with all of the other evidence in the current record, will prove that

no rational trier of fact would have found proof of guilt or delinquency beyond a

reasonable doubt." Va. Code Ann. § 19.2-327.11.

Upon the presentation of such evidence, the Virginia Court of Appeals (its intermediate

appellate court) may reverse the conviction. In 2009 the State of Maryland adopted a

law with a significantly lower standard: the new evidence must "create[] a substantial or

significant possibility that the result may have been different[.]" Md. Code Ann., Crim.

Pro. Art. §8-301. However, the Maryland law allows for a retrial rather than a summary

reversal. The State of Utah has adopted an actual innocence statute. The legislatures of

Wyoming and Missouri were considering similar laws in 2013.

Even in those jurisdictions without formal "actual innocence" provisions in their postconviction

statutes, actual innocence can have a procedural effect, in that it will excuse

procedural default and permit the filing of a successor collateral relief petition. This is

based on the U.S. Supreme Court's decision in Schlup v. Delo, 513 U.S. 298 (1995), in

which a death row inmate filed a second federal habeas corpus petition, asserting as

substantive claims the claims that his trial lawyer had ineffectively failed to present alibi

witnesses and that the Government had wrongly concealed exculpatory evidence.

Schlup also argued that he was actually innocent—not because that was a substantive

ground for relief, but because his actual innocence excused his failure to raise his

ineffective-counsel and prosecutorial-nondisclosure claims in his state court pleadings

and in his first federal habeas petition. Whether or not relief was to be granted,

the Schlup Court held, depended on the merits of his ineffective counsel and

prosecutorial nondisclosure claims.

Pleading In The Alternative

Because pleading in the alternative is generally permitted in criminal cases, a defendant

may claim to have not committed the crime itself, but at the same time may claim

that if the defendant had committed the crime, the act was excused for a reason such

as insanity or intoxication, or was justified due to provocation or self-defense. Such

claims are, for obvious reasons, difficult to present to juries, because they entail arguing

both that the defendant did and did not commit the crime alleged.

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An English Perspective

Much of U.S. criminal law is derived from the English common law, whose standard

analysis is that (with the exception of strict liability offenses) a crime is made up of two


(i) the guilty act (actus reus); and

(ii) the guilty intention (mens rea).

A court examines the issues in sequence since there is little point in establishing

intent if the accused did not commit the act. The court will convict only if

the actus and the mens are shown beyond reasonable doubt. If convicted, the

accused may contest either or both of the findings of actus or mens. England

does not have the specific concept of "actual innocence" but the courts are

concerned to ensure that an innocent person is not subject to a criminal penalty.

The appeal process will not impose an onus of proof of "beyond reasonable

doubt" to show innocence, but (even if the process takes years) a court will allow

new evidence to be adduced if it tends to show that the accused did not (or could

not) commit the crime. The United Kingdom, like all 47 Member States of

the Council of Europe, is a signatory to the European Convention of Human

Rights, [6] and is prohibited by Article 3 from using the death penalty so there is no

longer the fear that an innocent man may be executed. The case of prisoner Troy

Davis, executed 21 September 2011, illustrates the difficulties that a person has,

once convicted, to prove his "actual innocence" in the U.S.

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Page 50 of 166

VI. Standards of Review

In law, the Standard of Review is the amount of deference given by one court (or some

other appellate tribunal) in reviewing a decision of a lower court or tribunal. A low

standard of review means that the decision under review will be varied or overturned if

the reviewing court considers there is any error at all in the lower court's decision. A

high standard of review means that deference is accorded to the decision under review,

so that it will not be disturbed just because the reviewing court might have decided the

matter differently; it will be varied only if the higher court considers the decision to have

obvious error. The standard of review may be set by statute or precedent (stare

decisis). In the United States, "standard of review" also has a separate meaning

concerning the level of deference the judiciary gives to Congress when ruling on the

constitutionality of legislation.

United States

In the United States, the term "standard of review" has several different meanings in

different contexts and thus there are several standards of review on appeal used in

federal courts depending on the nature of the question being appealed and the body

that made the decision.

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Questions of Fact

Arbitrary and Capricious

In administrative law, a government agency's resolution of a question of fact, when

decided pursuant to an informal rulemaking under the Administrative Procedure

Act (APA), is reviewed on the arbitrary and capricious standard. Arbitrary and capricious

is a legal ruling where in an appellate court determines that a previous ruling is invalid

because it was made on unreasonable grounds or without any proper consideration of

circumstances. This is an extremely deferential standard.

Substantial Evidence

A finding of fact made by a jury or an administrative agency in the context of APA

adjudication or formal rulemaking will be normally upheld on appeal unless it is

unsupported by "substantial evidence." This means something "more than a mere

scintilla" of evidence. It means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion." Under the "substantial evidence"

standard, appellate review extends to whether there is any relevant evidence in the

record which reasonably supports every material fact (that is, material in the sense of

establishing an essential element of a claim or defense). Appellate courts will not

reverse such findings of fact unless they have no reasonable basis in the evidence

submitted by the parties. In other words, they will not reverse unless no one submitted

any testimony, documentation, or other evidence which directly or indirectly (i.e.,

through reasonable inferences) supports a material fact, thereby implying that the finder

of fact must have engaged in impermissible speculation with no reasonable basis in

order to reach a verdict. If the parties presented conflicting evidence, appellate courts

applying a "substantial evidence" standard assume that the jury or administrative

agency resolved the conflict in favor of the prevailing party, and in turn, appellate courts

must defer to such implicit findings about which side's witnesses or documents were

more believable, even if they suspect they might have ruled differently if hearing the

evidence themselves in the first instance. This is a highly deferential standard.

Clearly Erroneous

Under the "clearly erroneous" standard, where a trial court (as opposed to a jury or

administrative agency) makes a finding of fact, such as in a bench trial, that finding will

not be disturbed unless the appellate court is left with a "definite and firm conviction that

a mistake has been committed" by that court. For example, if a court finds, based on the

testimony of a single eyewitness, that a defendant broke a window by throwing a onepound

rock over 20 feet, the appeals court might reverse that factual finding based on

uncontradicted expert testimony (also presented to the lower court) stating that such a

feat is impossible for most people. In such a case, the appeals court might find that,

although there was evidence to support the lower court's finding, the evidence taken as

a whole—including the eyewitness and the expert testimony—leaves the appellate court

with a definite and firm conviction that a mistake was committed by the Court below.

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Questions of Law

De novo

Under de novo review, the appellate court acts as if it were considering the question for

the first time, affording no deference to the decisions below. Legal decisions of a lower

court on questions of law are reviewed using this standard. This is sometimes also

called plenary review or the "legal error" standard. It allows the appeals court to

substitute its own judgment about whether the lower court correctly applied the law.

A new trial in which all issues are reviewed as if for the first time is called a trial de novo.


Questions of statutory interpretation decided by an administrative agency in a manner

that has the force of law are subject to Chevron review.


Questions of statutory interpretation decided by an agency in a manner that does not

have the force of law are subject to Skidmore review.

Mixed Questions of Law and Fact

Court and jury decisions concerning mixed questions of law and fact are usually

subjected to de novo review, unless factual issues predominate, in which event the

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decision will be subject to clearly erroneous review. When made by administrative

agencies, decisions concerning mixed questions of law and fact are subjected to

arbitrary and capricious review.

Additionally, in some areas of substantive law, such as when a court is reviewing a First

Amendment issue, an appellate court will use a standard of review called "independent

review." The standard is somewhere in between de novo review and clearly erroneous

review. Under independent review, an appellate court will reexamine the record from the

lower court as the appellate court makes its legal determinations.

Questions of Trial Oversight

Abuse of Discretion

Where a lower court has made a discretionary ruling (such as whether to allow a party

claiming a hardship to file a brief after the deadline), that decision will be reviewed

for abuse of discretion. It will not be reversed unless the decision is "plain error". One

consideration is whether "unpreserved" error exists—that is, mistakes made by the

lower court that were not objected to as the law requires. In such a case, the appellate

court may still choose to look at the lower court's mistake even though there was no

objection, if the appellate court determines that the error was evident, obvious, and

clear and materially prejudiced a substantial right, meaning that it was likely that the

mistake affected the outcome of the case below in a significant way.

In federal court, if a party commits forfeiture of error, e.g. by failing to raise a

timely objection, then on appeal, the burden of proof is on that party to show that plain

error occurred. If the party did raise a timely objection that was overruled, then on

appeal, the burden of proof is on the other party to show that the error was harmless


This approach is dictated by Federal Rule of Criminal Procedure 52, which holds, "[a]ny

error, defect, irregularity, or variance that does not affect substantial rights must be

disregarded, [while a] plain error that affects substantial rights may be considered even

though it was not brought to the court's attention." The appellate court has discretion as

to whether or not to correct plain error. Usually the court will not correct it unless it led to

a brazen miscarriage of justice.

Questions of Constitutionality

Questions of constitutionality are considered a type of question of law, and thus

appellate courts always review lower court decisions that address constitutional

issues de novo. However, the term "standard of review" has an additional meaning in

the context of reviewing a law for its constitutionality, which concerns how much

deference the judiciary should give Congress in determining whether legislation is

constitutional. Concerning constitutional questions, three basic standards of review

exist: rational basis, intermediate scrutiny, and strict scrutiny. This form of standard of

review is sometimes also called the standard or level of scrutiny.

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Rational Basis

Generally, the Supreme Court judges legislation based on whether it has a reasonable

relationship to a legitimate state interest. This is called rational basis review. For

example, a statute requiring the licensing of opticians is permissible because it has the

legitimate state objective of ensuring the health of consumers, and the licensing statutes

are reasonably related to ensuring their health by requiring certain education for

opticians. Williamson v. Lee Optical Co., 348 U.S. 483 (1955).

Intermediate Scrutiny

Under the Equal Protection Clause, when the law targets a "quasi-suspect"

classification, such as gender, the courts apply intermediate scrutiny, which requires the

law to be substantially related to an important government interest. It is more strict than

rational basis review but less strict than strict scrutiny.

Other forms of intermediate scrutiny are applied in other contexts. For example, under

the Free Speech Clause, content-neutral time, place, and manner restrictions on

speech are subject to a form of intermediate scrutiny.

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Strict Scrutiny

If a statute impinges on a fundamental right, such as those listed in the Bill of Rights or

the due process rights of the Fourteenth Amendment, then the court will apply strict

scrutiny. This means the statute must be "narrowly tailored" to address a "compelling

state interest."

The courts will also apply strict scrutiny if the law targets a suspect classification, such

as race. For example, there is no fundamental right to be an optician (as explained

above), but if the state only requires licenses of African Americans (and not opticians of

other races), that double standard would receive strict scrutiny, and would likely be

ruled unconstitutional.


In Canada, a decision of a tribunal, board, commission or other government decisionmaker

can be reviewed on two standards depending on the circumstances. The two

standards applied are "correctness" and "reasonableness". In each case, a court must

undertake a "standard of review analysis" to determine the appropriate standard to

apply. This approach was described in detail by the Supreme Court of

Canada in Dunsmuir v New Brunswick, 2008 SCC 8.

According to the Supreme Court of Canada in Housen v Nikolaisen, 2002 SCC 30:

{{quote|text=The standard of review for findings of fact is such that they cannot be

reversed unless the trial judge has made a 'palpable and overriding error.' A palpable

error is one that is plainly seen. The reasons for deferring to a trial judge's findings of

fact can be grouped into three basic principles. Firstly, given the scarcity of judicial

resources, setting limits on the scope of judicial review in turn limits the number, length

and cost of appeals. Secondly, the principle of deference promotes the autonomy and

integrity of the trial proceedings. Finally, this principle recognizes the expertise of trial

judges and their advantageous position to make factual findings, owing to their

extensive exposure to the evidence and the benefit of hearing the testimony 'viva voce.'

The same degree of deference must be paid to inferences of fact, since many of the

reasons for showing deference to the factual findings of the trial judge apply equally to

all factual conclusions. The standard of review for inferences of fact is not to verify that

the inference can reasonably be supported by the findings of fact of the trial judge, but

whether the trial judge made a palpable and overriding error in coming to a factual

conclusion based on accepted facts, a stricter standard.

Making a factual conclusion of any kind is inextricably linked with assigning weight to

evidence, and thus attracts a deferential standard of review. If there is no palpable and

overriding error with respect to the underlying facts that the trial judge relies on to draw

the inference, then it is only when the inference-drawing process itself is palpably in

error that an appellate court can interfere with the factual conclusion.

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VII. Judicial Misconduct

Judicial misconduct occurs when a judge acts in ways that are considered unethical

or otherwise violate the judge's obligations of impartial conduct.

Actions that can be classified as judicial misconduct include: conduct prejudicial to the

effective and expeditious administration of the business of the courts (as an extreme

example: "falsification of facts" at summary judgment); using the judge's office to obtain

special treatment for friends or relatives; accepting bribes, gifts, or other personal favors

related to the judicial office; having improper discussions with parties or counsel for one

side in a case; treating litigants or attorneys in a demonstrably egregious and hostile

manner; violating other specific, mandatory standards of judicial conduct, such as

judicial rules of procedure or evidence, or those pertaining to restrictions on outside

income and requirements for financial disclosure; and acting outside the jurisdiction of

the court, or performance of official duties if the conduct might have a prejudicial effect

on the administration of the business of the courts among reasonable people. Rules of

official misconduct also include rules concerning disability, which is a temporary or

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permanent condition rendering judge unable to discharge the duties of the particular

judicial office.

Judicial misconduct leads only seldom to a formal investigation. A court decision is not

beyond critique. Defendants may be coaxed to enter into plea bargains that rob the

public from a fair trial and from knowing the truth. Court decisions cannot be assumed

just. They are subject to critical public appraisal as any human decision.

In the UK

In the UK Judicial misconduct is investigated by the Judicial Conduct Investigations


In the USA

A judicial investigative committee is a panel of judges selected to investigate a judicial

misconduct complaint against a judge accused of judicial misconduct. Judicial

investigative committees are rarely appointed. According to U.S. Court statistics, only

18 of the 1,484 judicial misconduct complaints filed in the United States Courts between

September 2004 and September 2007 warranted the formation of judicial investigative


Notable Judges Involved in Misconduct Allegations

Michigan Supreme Court Justice Diane Hathaway

United States Supreme Court Justice Samuel Chase, who was acquitted on

articles of impeachment

Chief Justice of the Alabama Supreme Court Roy Moore

Judge Diane Hathaway

Diane Marie Hathaway (born February 1954) is a former Justice of the Michigan

Supreme Court. Hathaway, a Democrat, was elected on November 4, 2008 to an 8-year

term which commenced in January, 2009. Hathaway retired from the court effective

January 21, 2013, after being charged with felony criminal mortgage fraud, to which

Hathaway pleaded guilty on January 29, 2013.

Early Life and Career

Hathaway was born and raised in Detroit, where her father was a city police officer. She

attended the Henry Ford Hospital School of Radiological Technology, 1972–74, before

attending Wayne State University, 1980-81. Hathaway then earned a BS in Health

from Madonna College, where she graduated with honors in 1983.

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Hathaway went on to receive a law degree from the Detroit College of Law

(now Michigan State University College of Law) in 1987. While attending law school,

Hathaway served as a research clerk in the Detroit Recorders Court, and then in the

Circuit Court. After passing the bar, she served as a public attorney from 1987-1993,

first as a Macomb County Assistant Prosecutor, and then as Chief of the Drug Forfeiture


Hathaway earned a Real Estate Salesperson license in Michigan in 1987, and a Real

Estate Broker license in 1990. According to her Supreme Court biography, she has

taught Continuing Education and Real Estate Law classes for other licensees.

In November 1992, Hathaway was elected judge of the Wayne County Circuit Court, 3rd

Judicial Circuit, and served from 1993 until 2009, when she was elevated to Michigan

Supreme Court Justice.

In 2006, Hathaway mounted an unsuccessful campaign for a seat on the state Court of

Appeals. She finished third behind two sitting judges.

Hathaway is currently married to attorney Michael J. Kingsley.

Hathaway's annual compensation for her work on the Supreme Court was $164,610.

Hathaway was the first sitting Michigan Supreme Court Justice to be charged with a

crime in nearly 40 years. In 1975, former Michigan Governor and Supreme Court

Justice John Swainson was acquitted of bribery, but served a short sentence

for perjury committed before a federal grand jury.

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Supreme Court Candidacy and Election

With the support of unions including the Michigan Education Association, the AFL-CIO,

and the United Auto Workers, Hathaway was nominated at the Michigan Democratic

Party'ssummer convention, and announced her candidacy for the state Supreme Court

in September, 2008. Hathaway ran for the seat held by the conservative incumbent

Chief Justice of the Court, Cliff Taylor. Her campaign echoed the "change" theme of

other state and national candidates during the 2008 election cycle, and

Hathaway's negative advertising strategy focused on a controversial charge that Taylor

had been caught napping on the bench while arguments were being heard. Regarding

Taylor, Hathaway was quoted as saying “If you see justice in the name, he really

belongs in the hall of shame.”

Hathaway's stunning defeat of Taylor by 10 percentage points marked the first time an

incumbent judge had been unseated in Michigan in nearly 25 years, and the first time in

history that a sitting Supreme Court justice had been defeated in a re-election bid. On

January 9, 2009, Hathaway was sworn in as the 104th justice of the court, being the

seventh woman seated over the court's history. Among those attending the investiture

ceremony were family members, including Hathaway's former sister-in-law Judge Amy

Hathaway of Wayne County's 3rd Circuit Court.

Hathaway's time on the court was highlighted largely by the reversal of decisions

reached under the Taylor court, particularly in cases involving personal injury and

insurance company liability.

Mortgage Fraud

Beginning in May, 2012 Justice Hathaway's personal real estate dealings became the

subject of growing media scrutiny after WXYZ-TV's Ross Jones reported on recent

shuffling of Hathaway properties in Michigan and Florida. Justice Hathaway declined to

answer Jones' questions concerning her property transactions on

camera. The Associated Press soon picked up the story. It was reported that "The chief

justice of the Michigan Supreme Court (Robert P. Young, Jr.) called on a fellow justice

(Hathaway) to 'clear the air' Thursday after a TV station said she put real estate in

relatives' names while trying to persuade a bank to allow a short sale on a separate


It was claimed that after the hardship sale of her lakefront home (reportedly mortgaged

for $1.5 million) in Grosse Pointe Park was finalized, Justice Hathaway put another

home — a debt-free property in Windermere, Fla., valued at about $644,000 —

back into her name. The short sale of the Grosse Pointe home allegedly allowed

Hathaway to avoid foreclosure proceedings and walk away from $600,000 in mortgage


Prior to the short sale, Hathaway transferred another Grosse Pointe Park home on

Windmill Pointe Drive to her stepson with no significant funds changing hands.

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A third Grosse Pointe Park home, purchased for $195,000 in cash by Hathaway's

stepdaughter Sarah Kingsley, was also transferred into Hathaway's name after the short

sale in question. No money changed hands in the "sale" to Hathaway of that Balfour

Street home which would become, and remains, Hathaway's reported personal

residence. Sarah Kingsley reportedly was herself pursuing a separate short sale on a

home in Grosse Pointe Woods at the time of her cash purchase on Balfour, raising

questions as to the source of the funds used by Sarah Kingsley to make the initial

purchase on Balfour.

Sometime after the beginning of WXYZ's

investigation, Hathaway reportedly became the

subject of an FBI probe as a Grand Jury was

reportedly empanelled. The Detroit Free

Press quoted former Detroit FBI chief Andrew

Arena as saying "This (home swapping) is a

plausible scheme. It is one that I've seen in the

past," adding "It's a shell game -- you move

properties around."

Hathaway also reportedly became the subject of

at least one filing with the state's Judicial Tenure

Commission, which is responsible for

investigating allegations of impropriety by, and

leveling formal complaints against, sitting


According to the News, Hathaway "took a

continuing education course in short sales and

foreclosures the same month the bank began

foreclosure proceedings on the home on Lakeview Court (the subject of the short sale)."

Forfeiture Action

On November 20, the Detroit News reported that the federal government was seeking

forfeiture of the Florida home in question. The case was filed in the Eastern District of

Michigan on November 19.

In the civil complaint, U.S. Attorney Barbara L. McQuade charged that Hathaway and

her husband, Michael J. Kingsley, "systematically and fraudulently transferred property

and hid assets in order to support their claim to (ING Direct) that they did not have the

financial resources to pay the mortgage on the Michigan property."

The News discussed strong indications that Hathaway was planning to resign from the

court, but also noted that her office denied those claims, and that her attorney of record

Steven Fishman stated that he knew nothing of any resignation plan.

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Another report stated that Hathaway had already cleaned out her personal effects from

the Michigan Hall of Justice.

On November 21, it was widely reported that Fishman stated that Hathaway and

Kingsley would fight to keep the Florida home, as well as her seat on the high court.

Fishman declined to comment directly on the pending forfeiture action.

Political and Editorial Comment

Demands for Hathaway's resignation included those from Michigan GOP spokesman

Matt Frendeway, and conservative Detroit radio personality and Detroit

News columnist Frank Beckmann, who suggested a possible political angle in the

treatment of the Hathaway case, noting that Hathaway is a Democrat, U.S. Attorney

McQuade was appointed by the Obama Administration, and that McQuade to date

pursued civil forfeiture rather than criminal charges against Hathaway and Kingsley. The

editors of the News also called for Hathaway's resignation. The editor of the Livingston

County Daily Press & Argus suggested that Hathaway either "clear the air," or fight the

allegations "as a private citizen." Long-time Michigan political analyst Tim

Skubick called Justice Hathaway's protracted silence on the accusations "deafening."

Michigan State Senate Democratic Leader Gretchen Whitmer of East Lansing told

the News "If the allegations are true, then she (Hathaway) should step down."

Hathaway and Kingsley Respond

On November 30, WXYZ's Jones reported that Hathaway and Kingsley had filed a

response to the forfeiture action, and that "Hathaway denied the allegations, but did

acknowledge that she and her husband did not tell their bank, ING, that they had

recently transferred the property out of their names, and into a stepdaughter’s."

The News reported that in the court filing, attorney Fishman wrote, "[C]laimants, with the

assistance of their lawyer, provided the information that was requested by ING in its

'Customer Information Summary,' which did not include any questions about property

that had been recently transferred," and, "In fact, ING knew about and inquired about

the defendant property during the 'short sale' process and either did learn or could

easily have learned about the property transfer. Whether ING did or did not learn about

the property transfer, it is obvious that the transfer had no impact on ING's decision to

approve the short sale."

90-Day Stay

On December 19, it was reported that Hathaway and Kingsley, as well as the federal

government, had agreed to a 90-day stay on the forfeiture action. A report in

the News cited expert speculation that the stay might be a maneuver allowing Hathaway

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time to resolve potential criminal charges, and to resign from the bench. U.S. Attorney

McQuade's spokesperson called the 3-month delay "standard procedure."

Retirement from Supreme Court

On January 7, 2013, WXYZ's Ross Jones, the News, and the Free Press each reported

that Hathaway would retire from the Michigan Supreme Court effective January 21.

Hathaway's announcement came through her attorneys Steven Fishman and Brian

Einhorn after a scathing litany of charges related to the alleged mortgage fraud were

detailed within a recommendation by the state Judicial Tenure Commission that

Hathaway be placed under immediate suspension. That report called Hathaway's

actions "blatant and brazen" violations of judicial ethical conduct. The allegations

against Hathaway, and the complaint by the JTC itself, were called "unprecedented" in

Michigan Supreme Court history. The Hathaway legal team, however, contended that

the JTC brought action only to "pander to the press," and to "embarrass and humiliate"

Hathaway, as Hathaway had, in fact, submitted her notice of retirement with the state on

December 20, 2012, and also informed the JTC of her decision to leave the bench

verbally on December 21, and in writing December 26.

The News, reporting on January 8, depicted Hathaway's "exit strategy" unfavorably,

calling her December 20 retirement filing "secret," and indicating that she failed to notify

her fellow justices of her retirement decision until after the JTC report was released.

Hathaway was given 14 days to respond to the JTC complaint, but the complaint will

have no official weight after her departure, although the JTC could censure Hathaway.

When asked by the News, attorney Fishman declined to cite the JTC complaint, or any

other rationale, as the basis for Hathaway's untimely mid-term exit from the high court.

It was reported that Justice Hathaway would not participate in any court proceedings

pending her retirement.

Federal Criminal Bank Fraud Charged

On January 18, 2013, federal prosecutors filed a felony criminal bank fraud charge

against Hathaway, only days prior to her exit from the state's highest court. The charge

carries a maximum penalty of 30 years imprisonment, although the AP reported that the

charge was filed as "criminal information," indicating that a deal had been negotiated

with Hathaway (to enter a guilty plea). Michael Kingsley was not named in the filing,

which was entered by the White Collar Crimes unit within U.S. Attorney Barbara

McQuade's office.

WXYZ's Ross Jones, who broke the Hathaway story in May, 2012, reported "[t]he

document laying out the charge against Hathaway says she 'executed a scheme to

defraud ING and to obtain money and funds owned by and under the control of ING by

means of materially false and fraudulent pretenses and representations.' "

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The News cited expert speculation that Hathaway would probably serve some portion of

the 27 to 33 months recommended under sentencing guidelines. Former federal

prosecutor Peter Henning told the News, "What kind of message would be sent if she

gets no prison time while someone who steals thousands of dollars from a bank (an

armed bank robber) goes to jail?" Fox 2 News quoted former FBI agent Andrew Arena

as saying, "I think the hammer's gonna fall (on Hathaway)."

AP reported that the case will be heard by Clinton Administration appointee U.S. District

Judge John Corbett O'Meara in Ann Arbor. On January 21, WXYZ reported that

Hathaway could appear before Judge O'Meara as early as January 22.


On January 22, it was reported that Hathaway was scheduled to appear

for arraignment before Judge O'Meara on January 29 at 10:30am. Reports reiterated

the expectation that Hathaway would enter a guilty plea as part of a deal with federal


Attorney General calls on Attorney Grievance Commission

On January 24, Detroit media outlets reported that Michigan Attorney General Bill

Schuette had sought an investigation of Hathaway's real estate dealings by the Attorney

Grievance Commission, the states's official lawyer watchdog agency. "The conduct

described in the JTC Complaint raises serious questions as to Ms. Hathaway's fitness to

practice law," Schuette was quoted as saying. Because Hathaway's law license would

be automatically suspended upon an expected guilty plea to the felony charge she

already faced, Hathaway's attorney Steven Fishman called Schuette's action "piling on."

Statement of the Chief Justice of the Michigan Supreme Court

WXYZ's Jones reported that Michigan Supreme Court Chief Justice Robert P. Young,

Jr. issued the following statement regarding the charge against Hathaway:

When any elected official is charged with serious misconduct, the public’s faith in its

government institutions can suffer. The federal criminal fraud charges levied against

Justice Hathaway and her departure from the Supreme Court bring to a close an

unhappy, uncharacteristic chapter in the life of this Court. The last eight months have

cast an unfortunate shadow over the Court. Going forward, my five fellow justices and I,

and this Court as an institution, will do what we have always strived to do: to uphold the

highest ethical standards, render the best public service in promoting the rule of law for

everyone, and do our utmost to deserve the trust the public has placed in us.

Guilty Plea

On January 29, 2013, Diane Hathaway entered a guilty plea on one federal count of

felony bank fraud before Judge O'Meara. She was not immediately detained, with a May

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28 sentencing date set. It was expected that she would face penalties ranging from

likely probation, to some portion of the maximum 18 months imprisonment stipulated

under the agreement. In addition, fines and restitution to be determined by the court

could total over $100,000. Hathaway and Kingsley would not, however, be forced to

forfeit their Windermere, Florida home as part of the settlement, thereby closing the civil

case against that property. The former justice also agreed not to appeal O'Meara's

sentence as part of the plea deal. Hathaway faced potential regulatory action against

her law and real estate licenses.

David Viviano Appointed to Fill Hathaway Seat

On February 27, 2013, Michigan Governor Rick Snyder appointed Macomb

County Chief Circuit Judge David Viviano to replace Diane Hathaway on the Michigan

Supreme Court.

Prison Sentence and Release

On May 28, 2013, Hathaway appeared before Judge O'Meara in Ann Arbor and was

sentenced to 366 days in federal prison. Hathaway walked free from the courtroom and

will report to serve her sentence at a later date. Speaking at length for the first time

since her guilty plea, Hathaway reportedly said, “Your Honor, I stand before you a

broken person…”

The government's sentencing brief was posted by the Detroit Free Press.

On August 13, 2013, Hathaway began serving her sentence at the Federal Correctional

Facility at Alderson, WV, otherwise known as "Camp Cupcake" due to the

comparatively favorable conditions at the minimum security prison, which houses

females found guilty of federal crimes. The ranks of former inmates of the camp range

from jazz legend Billie Holiday and would-be presidential assassins Sara Jane

Moore and Lynette "Squeaky" Fromme, to homemaking mogul Martha Stewart.

On April 29, 2014, the Detroit News reported that Judge O'Meara had denied

Hathaway's request for early release. Hathaway was scheduled for release on June 26,


On May 22, 2014, WXYZ's Ross Jones reported that Hathaway had been released from


Judge Samuel Chase

Samuel Chase (April 17, 1741 – June 19, 1811) was an Associate Justice of the United

States Supreme Court and a signatory to the United States Declaration of

Independence as a representative of Maryland. He was impeached by the House on

grounds of letting his partisan leanings affect his court decisions but was acquitted by

the Senate and remained in office.

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Born near Princess Anne, Maryland, Chase established a legal practice in Annapolis,

Maryland. He served in the Maryland General Assembly for several years and favored

independence during the American Revolution. He won election to the Continental

Congress before serving on the Baltimore District Criminal Court and the Maryland

General Court. In 1796, President George Washington appointed Chase to the United

States Supreme Court.

After the 1800 elections, President Thomas Jefferson and the Democratic-

Republicans sought to weaken Federalist influence on the federal courts. Chase's

actions on the court had been accused of demonstrating bias, and Jefferson believed

that Chase should be removed from office. The House of Representatives impeached

Chase on eight articles of impeachment, all centering on Chases's alleged political bias.

The Senate voted to acquit Chase on all counts, and Chase served on the Supreme

Court until his death in 1811. Some historians have argued that Chase's acquittal set an

important precedent regarding the independence of the federal judiciary.

Youth and Early Career

Samuel Chase was the only child of the Reverend Thomas Chase (c. 1703–1779) and

his wife, Matilda Walker (? – by 1744), born near Princess Anne, Maryland.

His father was a clergyman who immigrated to Somerset County to become a priest in a

new church. Samuel was educated at home. He was eighteen when he left

for Annapolis where he studied law under attorney John Hall. He was admitted to the

bar in 1761 and started a law practice in Annapolis. It was during his time as a member

of the bar that his colleagues gave him the nickname of "Old Bacon Face."

Family and Personal Life

In May 1762, Chase married Ann Baldwin, daughter of Thomas and Agnes Baldwin.

Samuel and Ann had three sons and four daughters, with only four surviving to

adulthood. Ann died in 1776.

In 1784, Chase traveled to England to deal with Maryland's Bank of England stock,

where he met Hannah Kilty, daughter of Samuel Giles, a Berkshire physician. They

were married later that year and had two daughters, Hannah and Elisa.

Career in Annapolis

In 1762, Chase was expelled from the Forensic Club, an Annapolis debating society, for

"extremely irregular and indecent" behavior.

In 1764, Chase was elected to the Maryland General Assembly where he served for 20


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In 1766, he became embroiled in a war of words with a number of loyalist members of

the Maryland political establishment. In an open letter dated July 18, 1766, Chase

attacked Walter Dulany, George Steuart (1700–1784), John Brice (1705–1766), and

others for publishing an article in the Maryland Gazette Extraordinary of June 19, 1766,

in which Chase was accused of being: "a busy, reckless incendiary, a ringleader of

mobs, a foul-mouthed and inflaming son of discord and faction, a common disturber of

the public tranquility". In his response, Chase accused Steuart and the others of

"vanity...pride and arrogance", and of being brought to power by "proprietary influence,

court favor, and the wealth and influence of the tools and favorites who infest this city."

In 1769, he started construction of the mansion that would become known as

the Chase–Lloyd House, which he sold unfinished in 1771. The house is now a National

Historic Landmark.

He co-founded Anne Arundel County's Sons of Liberty chapter with his close

friend William Paca, as well as leading opposition to the 1765 Stamp Act.

Continental Congress

From 1774 to 1776, Chase was a member of the Annapolis Convention. He

represented Maryland at the Continental Congress, was re-elected in 1776 and signed

the United States Declaration of Independence.

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He remained in the Continental Congress until 1778. The involvement of Chase in an

attempt to corner the flour market, using insider information gained through his position

in the Congress, resulted in his not being returned to the Continental Congress and

damaging his reputation.

Judicial Career

In 1786, Chase moved to Baltimore, which remained his home for the rest of his life. In

1788, he was appointed chief justice of the District Criminal Court in Baltimore and

served until 1796. In 1791, he became Chief Justice of the Maryland General Court,

again serving until 1796.

On January 26, 1796, President George Washington appointed Chase as an associate

justice of the Supreme Court of the United States. Chase served on the court until his

death on June 19, 1811.


President Thomas Jefferson, alarmed at the seizure of power by the judiciary through

the claim of exclusive judicial review, led his party's efforts to remove the Federalists

from the bench. His allies in Congress had, shortly after his inauguration, repealed

the Judiciary Act of 1801, abolishing the lower courts created by the legislation and

terminating their Federalist judges despite lifetime appointments; Chase, two years after

the repeal in May 1803, had denounced it in his charge to a Baltimore grand jury, saying

that it would "take away all security for property and personal liberty, and our

Republican constitution will sink into a mobocracy." Earlier in April 1800, Chase acting

as a district judge, had made strong attacks upon Thomas Cooper, who had been

indicted under the Alien and Sedition Acts; Chase had taken the air of a prosecutor

rather than a judge. Also in 1800, when a grand jury in New Castle, Delaware declined

to indict a local printer, Chase refused to discharge them, saying he was aware of one

specific printer that he wished them to indict for seditious behavior. Jefferson saw the

attack as indubitable bad behavior and an opportunity to reduce the Federalist influence

on the judiciary by impeaching Chase, launching the process from the White House

when he wrote to Congressman Joseph Hopper Nicholson of Maryland, asking: "Ought

the seditious and official attack [by Chase] on the principles of our Constitution . . .to go


Virginia Congressman John Randolph of Roanoke took up the challenge and took

charge of the impeachment. The House of Representatives served Chase with eight

articles of impeachment in late 1803, one of which involved Chase's handling of the trial

of John Fries. Two more focused on his conduct in the political libel trial of James

Callender. One article covered Chase's conduct with the New Castle grand jury,

charging that he "did descend from the dignity of a judge and stoop to the level of an

informer by refusing to discharge the grand jury, although entreated by several of the

said jury so to do." Three articles focused on procedural errors made during Chase's

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adjudication of various matters, and an eighth was directed at his "intemperate and

inflammatory … peculiarly indecent and unbecoming … highly unwarrantable … highly

indecent" remarks while "charging" or authorizing a Baltimore grand jury. On March 12,

1804, the House voted 73 to 32 to impeach Chase. The United States Senate—

controlled by the Jeffersonian Democratic-Republicans—began the impeachment trial of

Chase on February 9, 1805, with Vice President Aaron Burr presiding and Randolph

leading the prosecution.

All the counts involved Chase's work as a trial judge in lower circuit courts. (In that era,

Supreme Court justices had the added duty of serving as individuals on circuit courts, a

practice that was ended in the late 19th century.) The heart of the allegations was that

political bias had led Chase to treat defendants and their counsel in a blatantly unfair


Chase's defense lawyers called the prosecution a political effort by his Republican

enemies. In answer to the articles of impeachment, Chase argued that all of his actions

had been motivated by adherence to precedent, judicial duty to restrain advocates from

improper statements of law, and considerations of judicial efficiency.

The Senate voted to acquit Chase of all charges on March 1, 1805. There were 34

Senators present (25 Republicans and 9 Federalists), and 23 votes were needed to

reach the required two-thirds majority for conviction/removal from office. Of the eight

votes cast, the closest vote was 18 for conviction/removal from office and 16 for

acquittal in regards to the Baltimore grand jury charge. He is the only U.S. Supreme

Court justice to have been impeached. Judge Alexander Pope Humphrey recorded in

the Virginia Law Register an account of the impeachment trial and acquittal of Chase.

The impeachment raised constitutional questions over the nature of the judiciary and

was the end of a series of efforts to define the appropriate extent of judicial

independence under the Constitution. It set the limits of the impeachment power, fixed

the concept that the judiciary was prohibited from engaging in partisan politics, defined

the role of the judge in a criminal jury trial, and clarified judicial independence. The

construction was largely attitudinal, as it modified political norms without codifying new

legal doctrines.

The acquittal of Chase—by lopsided margins on several counts—set an unofficial

precedent that many historians say helped ensure the independence of the judiciary. As

Chief Justice William Rehnquist noted in his book Grand Inquests, some senators

declined to convict Chase despite their partisan hostility to him, apparently because

they doubted that the mere quality of his judging was grounds for removal. All

impeachments of federal judges since Chase have been based on allegations of legal

or ethical misconduct, not on judicial performance. For their part, federal judges since

that time have generally been much more cautious than Chase in trying to avoid the

appearance of political partisanship.

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Samuel Chase died of a heart attack in 1811. He was interred in what is now

Baltimore's Old Saint Paul's Cemetery.

Judge Roy Moore

Roy Stewart Moore (born February 11, 1947) is an American politician and jurist who

served as the 27th and 31st chief justice of the Supreme Court of Alabama. He was

the Republican nominee in the 2017 United States Senate special election in

Alabama to fill the seat vacated by Jeff Sessions, but lost to Democratic candidate Doug

Jones. He is also a candidate in the 2020 Senate election.

Moore attended West Point and served as a company commander in the Military Police

Corps during the Vietnam War. After graduating from the University of Alabama Law

School, he joined the Etowah County district attorney's office, serving as an assistant

district attorney from 1977 to 1982. In 1992 he was appointed as a circuit judge by

Governor Guy Hunt to fill a vacancy, and elected to the position at the end of the term.

In 2001 Moore was elected to the position of chief justice of the Supreme Court of

Alabama. Moore was removed from his position in November 2003 by the Alabama

Court of the Judiciary for refusing a federal court's order to remove a marble monument

of the Ten Commandments that he had placed in the rotunda of the Alabama Judicial


Moore sought the Republican nomination for the governorship of Alabama

in 2006 and 2010, but lost in the primaries. Moore was again elected chief justice in

2013, but was suspended in May 2016, for defying a U.S. Supreme Court decision

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about same-sex marriage. Moore resigned in April 2017, and in September 2017 was

nominated for the U.S. Senate seat vacated by Jeff Sessions.

During this special election campaign for U.S. Senate, public allegations of sexual

misconduct were made against him. Three women stated that he had sexually

assaulted them when they were at the respective ages of 14, 16 and 28. Moore

acknowledged that he may have approached and dated teenagers while he was in his

30s, but denied that any of the girls were underage or that he had sexually assaulted

anyone. President Donald Trump endorsed Moore a week before the election, after

which some Republicans withdrew their opposition to Moore. Democrat Doug Jones

won the election, becoming the first Democrat since 1992 to win a U.S. Senate seat in


Moore is considered an advocate of far-right politics. He attracted national media

attention and controversy over his views on race, homosexuality, transgender people,

and Islam, as well as his belief that Christianity should order public policy, and his past

ties to neo-Confederates and white nationalist groups. Moore was a leading voice in

the birther movement, which promoted the false claim that former president Barack

Obama was not born in the United States. He founded the Foundation for Moral Law, a

non-profit legal organization from which he collected more than $1 million over five

years, though a far smaller amount was indicated on its tax filings.

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VIII. Judicial Immunity

Judicial Immunity is a form of legal immunity which protects judges and others

employed by the judiciary from liability resulting from their judicial actions.


Historically, judicial immunity was associated with the English common law idea that

"the King can do no wrong". (Compare Sovereign immunity.) Judges, the King's

delegates for dispensing justice, accordingly "ought not to be drawn into question for

any supposed corruption [for this tends] to the slander of the justice of the King". An

example of applying judicial immunity: a judge is not liable for a slander or libel suit for

statements made about someone during a trial, no matter how corrupt that act was.

United Kingdom

In the United Kingdom, tribunals are

considered judicial in nature and so

judicial immunity applies to them at

common law. This was accepted by

the Employment Appeals Tribunal and

subsequently the Court of Appeal of

England and Wales in respect of police

misconduct hearings constituted under

the Police (Discipline) Regulations 1985

(since superseded by the Police

(Conduct) Regulations 2008) in Heath v

Commissioner of Police for the

Metropolis [2004] EWCA Civ 943. However, in P v Commissioner of Police of the

Metropolis[2017] UKSC 65, in which a police officer (an officer of the Crown, but under

the Equality Act 2010 treated as an employee in employment discrimination cases)

sought review of her dismissal as constituting disability discrimination due to posttraumatic

stress disorder, the Supreme Court ruled that the Employment Equality

Framework Directive (implemented by the 2010 Act) provided directly applicable rights

of access to justice in cases of employment discrimination, which, given the supremacy

of EU law, overrode the common law rule of judicial immunity.

United States

In the United States, judicial immunity is among a handful of forms of absolute

immunity, along with prosecutorial immunity, legislative immunity, and witness immunity.

The U.S. Supreme Court has characterized judicial immunity as providing "the

maximum ability [of judges] to deal fearlessly and impartially with the public". The

justification is as follows: because of the likelihood of innocent individuals being

convicted in a court of law under false claims, the "burden" of being subjected to a court

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of law (a trial) would "dampen" the judges "enthusiasm" or "passion". Opponents of

judicial immunity argue that this doctrine is not adequately justified. For example, judges

could be shielded from any personal capacity liability, and still be subject to official

capacity liability so that they may be held accountable for their injurious acts – thus

"balancing" the "evil" to better protect the fundamental rights of victims.

Judicial immunity does not protect judges from suits stemming from administrative

decisions made while off the bench, like hiring and firing decisions. But immunity

generally does extend to all judicial decisions in which the judge has proper jurisdiction,

even if a decision is made with "corrupt or malicious intent". In 1997 West Virginia judge

Troisi became so irritated with a rude defendant, he stepped down from the bench, took

off his robe, and bit the defendant on the nose. He pleaded no contest to state charges

but was acquitted of federal charges of violating the defendant's civil rights. He spent

five days in jail and was put on probation.

Because the immunity is attached to the judicial nature of the acts, not the official title of

the officeholder, judicial immunity also applies to administrative hearings, although in

some situations, only qualified immunity applies. In determining whether absolute or

qualified immunity should be provided, the U.S. Supreme Court has identified the

following factors, according to the Shriver Center's Federal Practice Manual for Legal

Aid Attorneys:

(a) The need to assure that the individual can perform his functions without

harassment or intimidation;

(b) the presence of safeguards that reduce the need for private damages

actions as a means of controlling unconstitutional conduct;

(c) insulation from political influence;

(d) the importance of precedent;

(e) the adversary nature of the process; and

(f) the correctability of error on appeal.

Stump v. Sparkman


One of the leading decisions on judicial immunity is Stump v. Sparkman. In 1971, Judge

Harold D. Stump granted a mother's petition to have a tubal ligation performed on her

15-year-old daughter, whom the mother alleged was "somewhat retarded". The

daughter was told that the surgery was to remove her appendix. In 1975 the daughter,

going by her then-married name of Linda Sparkman, learned that she had been

sterilized. She sued the judge. The U.S. Supreme Court ruled that the judge could not

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e sued, because the decision was made in the course of his duties. In that regard, it

was irrelevant that the judge's decision may have been contrary to law and morally


Harris v. Harvey

Judges usually, but not always, receive immunity from being sued. One exception

where a judge was sued and lost is Harris v. Harvey (1979). Sylvester Harris was an

African-American police lieutenant in Racine, Wisconsin, attacked in a variety of ways

by Judge Richard G. Harvey. Harris sued Harvey because of (a) comments Harvey

made to the news media, (b) threatening letters Harvey wrote to city and county officials

who attempted to defend Harris, and (c) parties Harvey held for ranking state officials

during which he attempted to get Harris removed from law enforcement. The jury

concluded that Harvey was not eligible for judicial immunity for these actions, as such

acts which were not part of the judge's normal duties (i.e. were "outside his

jurisdiction"). The jury awarded Harris $260,000 damages. Another judge later added

$7,500 legal fees. The United States Court of Appeals for the Seventh Circuit concurred

with the jury's decision. Judge Harvey petitioned the Seventh Circuit court for an en

banc rehearing, which was denied. His petition to the Supreme Court was also

denied. Harris v. Harvey is the first case in the United States where a sitting court judge

has been sued and lost in a civil action; it is a binding precedent in the Seventh Circuit

and is persuasive authority in the other circuits.

Page 75 of 166

Supreme Court of Virginia v. Consumers Union

In Supreme Court of Virginia v. Consumers Union (1980), the U.S. Supreme Court ruled

that the Supreme Court of Virginia did not have immunity in federal court from being

enjoined in its enforcement capacity where state law gave the court independent

authority to initiate certain proceedings against attorneys. Consumers Union was

hindered from compiling an attorney directory because many attorneys they contacted

declined to provide requested information out of fear of violating, and thereafter

prosecuted, attorney conduct regulations promulgated by the Supreme Court of Virginia.

Consumers Union filed a lawsuit in federal court against the Supreme Court of Virginia

and others, under 42 U.S.C. § 1983, seeking to have the regulation declared

unconstitutional and to enjoin the defendants from enforcing it. The U.S. Supreme Court

affirmed the Supreme Court of Virginia's legislative immunity:

If the sole basis for [Consumer Union's] § 1983 action against the Virginia Court and its

chief justice were the issuance of, or failure to amend, the challenged rules, legislative

immunity would foreclose suit against appellants. ... As already indicated, § 54–74 gives

the Virginia Court independent authority of its own to initiate proceedings against

attorneys. For this reason, the Virginia Court and its members were proper defendants

in a suit for declaratory and injunctive relief, just as other enforcement officers and

agencies were. ... If prosecutors and law enforcement personnel cannot be proceeded

against for declaratory relief, putative plaintiffs would have to await the institution of

state court proceedings against them in order to assert their federal constitutional

claims. This is not the way the law has developed, and, because of its own inherent and

statutory enforcement powers, immunity does not shield the Virginia Court and its chief

justice from suit in this case.

— Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 734-37 (1980)

Mireles v. Waco

On the other hand, misbehavior while performing judicial acts is immune. In the case

of Mireles v. Waco (1991), when a defense lawyer failed to appear for a scheduled

hearing, the judge not only issued a bench warrant for his arrest, but instructed the

police sent to arrest him to "rough him up a little" to teach him not to skip court dates.

Although this was entirely unprofessional and possibly criminal, the judge was held, by

the Supreme Court, to have absolute immunity from a lawsuit arising from the resulting

beating, because done entirely within his activities as a judge presiding over a court.

Page 76 of 166

IX. References

1. https://en.wikipedia.org/wiki/Error_(law)

2. https://pendletonupdates.com/category/appeals-andor-remands/20-common-judicialmistakes/

3. https://en.wikipedia.org/wiki/Fundamental_error

4. https://en.wikipedia.org/wiki/Mistake_of_law

5. https://en.wikipedia.org/wiki/Miscarriage_of_justice

6. https://en.wikipedia.org/wiki/Actual_innocence

7. https://en.wikipedia.org/wiki/Standard_of_review

8. https://en.wikipedia.org/wiki/Judicial_misconduct

9. https://en.wikipedia.org/wiki/Diane_Hathaway

10. https://en.wikipedia.org/wiki/Samuel_Chase

11. https://en.wikipedia.org/wiki/Roy_Moore

12. https://en.wikipedia.org/wiki/Judicial_immunity

13. http://www.terrylowry.com/bibleverses.pdf

14. https://www.judiciary.uk/wp-content/uploads/2016/01/warren_mistakes-and-secondthoughts-winter2012.pdf

15. https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2597&context=hlr

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Attachment A

Trial Lawyers and The Biblical

Basis for What We Do

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Attachment B

Warren: Mistakes and Second Thoughts

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Attachment C

The Line Between Legal Error

and Judicial Misconduct

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Advocacy Foundation Publishers

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Advocacy Foundation Publishers

The e-Advocate Quarterly

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Issue Title Quarterly

Vol. I 2015 The Fundamentals


The ComeUnity ReEngineering

Project Initiative

Q-1 2015

II The Adolescent Law Group Q-2 2015


Landmark Cases in US

Juvenile Justice (PA)

Q-3 2015

IV The First Amendment Project Q-4 2015

Vol. II 2016 Strategic Development

V The Fourth Amendment Project Q-1 2016


Landmark Cases in US

Juvenile Justice (NJ)

Q-2 2016

VII Youth Court Q-3 2016


The Economic Consequences of Legal


Q-4 2016

Vol. III 2017 Sustainability

IX The Sixth Amendment Project Q-1 2017


The Theological Foundations of

US Law & Government

Q-2 2017

XI The Eighth Amendment Project Q-3 2017


The EB-5 Investor

Immigration Project*

Q-4 2017

Vol. IV 2018 Collaboration

XIII Strategic Planning Q-1 2018


The Juvenile Justice

Legislative Reform Initiative

Q-2 2018

XV The Advocacy Foundation Coalition Q-3 2018

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for Drug-Free Communities

Landmark Cases in US

Juvenile Justice (GA)

Q-4 2018

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Issue Title Quarterly

Vol. V 2019 Organizational Development

XVII The Board of Directors Q-1 2019

XVIII The Inner Circle Q-2 2019

XIX Staff & Management Q-3 2019

XX Succession Planning Q-4 2019

XXI The Budget* Bonus #1

XXII Data-Driven Resource Allocation* Bonus #2

Vol. VI 2020 Missions

XXIII Critical Thinking Q-1 2020


The Advocacy Foundation

Endowments Initiative Project

Q-2 2020

XXV International Labor Relations Q-3 2020

XXVI Immigration Q-4 2020

Vol. VII 2021 Community Engagement


The 21 st Century Charter Schools


Q-1 2021

XXVIII The All-Sports Ministry @ ... Q-2 2021

XXIX Lobbying for Nonprofits Q-3 2021



Advocacy Foundation Missions -


Advocacy Foundation Missions -


Q-4 2021


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2022 ComeUnity ReEngineering


The Creative & Fine Arts Ministry

@ The Foundation

Q-1 2022

XXXIII The Advisory Council & Committees Q-2 2022


The Theological Origins

of Contemporary Judicial Process

Q-3 2022

XXXV The Second Chance Ministry @ ... Q-4 2022

Vol. IX 2023 Legal Reformation

XXXVI The Fifth Amendment Project Q-1 2023

XXXVII The Judicial Re-Engineering Initiative Q-2 2023


The Inner-Cities Strategic

Revitalization Initiative

Q-3 2023

XXXVIX Habeas Corpus Q-4 2023

Vol. X 2024 ComeUnity Development


The Inner-City Strategic

Revitalization Plan

Q-1 2024

XXXVXI The Mentoring Initiative Q-2 2024

XXXVXII The Violence Prevention Framework Q-3 2024

XXXVXIII The Fatherhood Initiative Q-4 2024

Vol. XI 2025 Public Interest

XXXVXIV Public Interest Law Q-1 2025

L (50) Spiritual Resource Development Q-2 2025

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Nonprofit Confidentiality

In The Age of Big Data

Q-3 2025

LII Interpreting The Facts Q-4 2025

Vol. XII 2026 Poverty In America


American Poverty

In The New Millennium

Q-1 2026

LIV Outcome-Based Thinking Q-2 2026

LV Transformational Social Leadership Q-3 2026

LVI The Cycle of Poverty Q-4 2026

Vol. XIII 2027 Raising Awareness

LVII ReEngineering Juvenile Justice Q-1 2027

LVIII Corporations Q-2 2027

LVIX The Prison Industrial Complex Q-3 2027

LX Restoration of Rights Q-4 2027

Vol. XIV 2028 Culturally Relevant Programming

LXI Community Culture Q-1 2028

LXII Corporate Culture Q-2 2028

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The Cross-Sector/ Coordinated

Service Approach to Delinquency


Q-4 2028

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Vol. XV 2029 Inner-Cities Revitalization




Part I – Strategic Housing


(The Twenty Percent Profit Margin)

Part II – Jobs Training, Educational


and Economic Empowerment

Part III - Financial Literacy

and Sustainability

Q-1 2029

Q-2 2029

Q-3 2029

LXVII Part IV – Solutions for Homelessness Q-4 2029


The Strategic Home Mortgage



Vol. XVI 2030 Sustainability

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The Advocacy Foundation

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Vol. XVII 2031 The Justice Series

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Vol. XVIII 2032 Public Policy

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LXXVIII Reforming Public Policy Q-2 2032

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The e-Advocate Monthly Review


Transformational Problem Solving January 2018

The Advocacy Foundation February 2018

Opioid Initiative

Native-American Youth March 2018

In the Juvenile Justice System

Barriers to Reducing Confinement April 2018

Latino and Hispanic Youth May 2018

In the Juvenile Justice System

Social Entrepreneurship June 2018

The Economic Consequences of

Homelessness in America S.Ed – June 2018

African-American Youth July 2018

In the Juvenile Justice System

Gang Deconstruction August 2018

Social Impact Investing September 2018

Opportunity Youth: October 2018

Disenfranchised Young People

The Economic Impact of Social November 2018

of Social Programs Development

Gun Control December 2018


The U.S. Stock Market January 2019

Prison-Based Gerrymandering February 2019

Literacy-Based Prison Construction March 2019

Children of Incarcerated Parents April 2019

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African-American Youth in The May 2019

Juvenile Justice System

Racial Profiling June 2019

Mass Collaboration July 2019

Concentrated Poverty August 2019

De-Industrialization September 2019

Overcoming Dyslexia October 2019

Overcoming Attention Deficit November 2019

The Gift of Adversity December 2019


The Gift of Hypersensitivity January 2020

The Gift of Introspection February 2020

The Gift of Introversion March 2020

The Gift of Spirituality April 2020

The Gift of Transformation May 2020

Property Acquisition for

Organizational Sustainability June 2020

Investing for Organizational

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Biblical Law & Justice TLFA August 2020

Gentrification AF September 2020

Environmental Racism NpA October 2020

Law for The Poor AF November 2020

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Biblically Responsible Investing TLFA – January 2021

International Criminal Procedure LMI – February 2021

Spiritual Rights TLFA – March 2021

The Theology of Missions TLFA – April 2021

Legal Evangelism, Intelligence,

Reconnaissance & Missions LMI – May 2021

The Law of War LMI – June 2021

Generational Progression AF – July 2021

Predatory Lending AF – August 2021

The Community Assessment Process NpA – September 2021

Accountability NpA – October 2021

Nonprofit Transparency NpA – November 2021

Redefining Unemployment AF – December 2021


21 st Century Slavery AF – January 2022

Acquiesce to Righteousness TLFA – February 2022

ComeUnity Capacity-Building NpA – March 2022

Nonprofit Organizational Assessment NpA – April 2022

Debt Reduction AF – May 2022

Case Law, Statutory Law,

Municipal Ordinances and Policy ALG – June 2022

Organizational Dysfunction NpA - July 2022

Institutional Racism Collab US – August 2022

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The Ripple Effects of Ministry TLFA - September 2022

The Sarbanes-Oxley Act of 2002 NpA – October 2022

Organized Crime (In The New Millennium) ALG – May 2022

Nonprofit Marketing NpA – June 2022

The Uniform Code of Military Justice AF – July 2022

Community Policing NpA – August 2022

Wills, Trusts & Estates AF – September 2022

International Incidents Series

I. Ten Conflicts to Watch In

The New Millennium LMI – October 2022

II. International Hotspots LMI – November 2022

III. International Cyber Terrorism LMI – December 2022


IV. International Sex Trafficking LMI – January 2023

V. Brexit LMI – February 2023

VI. Global Jihad LMI – March 2023

VII. The Global Economy LMI – April 2023

Judicial Mistakes ALG – May 2023

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The e-Advocate Quarterly

Special Editions

Crowdfunding Winter-Spring 2017

Social Media for Nonprofits October 2017

Mass Media for Nonprofits November 2017

The Opioid Crisis in America: January 2018

Issues in Pain Management

The Opioid Crisis in America: February 2018

The Drug Culture in the U.S.

The Opioid Crisis in America: March 2018

Drug Abuse Among Veterans

The Opioid Crisis in America: April 2018

Drug Abuse Among America’s


The Opioid Crisis in America: May 2018


The Economic Consequences of June 2018

Homelessness in The US

The Economic Consequences of July 2018

Opioid Addiction in America

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The e-Advocate Journal

of Theological Jurisprudence

Vol. I - 2017

The Theological Origins of Contemporary Judicial Process

Scriptural Application to The Model Criminal Code

Scriptural Application for Tort Reform

Scriptural Application to Juvenile Justice Reformation

Vol. II - 2018

Scriptural Application for The Canons of Ethics

Scriptural Application to Contracts Reform

& The Uniform Commercial Code

Scriptural Application to The Law of Property

Scriptural Application to The Law of Evidence

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Legal Missions International

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Issue Title Quarterly

Vol. I 2015



God’s Will and The 21 st Century

Democratic Process

The Community

Engagement Strategy

Q-1 2015

Q-2 2015

III Foreign Policy Q-3 2015


Public Interest Law

in The New Millennium

Q-4 2015

Vol. II 2016

V Ethiopia Q-1 2016

VI Zimbabwe Q-2 2016

VII Jamaica Q-3 2016

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Vol. III 2017

IX India Q-1 2017

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XI The Caribbean Q-3 2017

XII United States/ Estados Unidos Q-4 2017

Vol. IV 2018

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XIV Guinea Q-2 2018

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XVI Sri Lanka Q-4 2018

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Vol. V 2019

XVII Russia Q-1 2019

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XIV South Korea Q-3 2019

XV Puerto Rico Q-4 2019

Issue Title Quarterly

Vol. VI 2020

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XVII Egypt Q-2 2020

XVIII Sierra Leone Q-3 2020

XIX South Africa Q-4 2020

XX Israel Bonus

Vol. VII 2021

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XXII Peru Q-2 2021

XXIII Costa Rica Q-3 2021

XXIV China Q-4 2021

XXV Japan Bonus

Vol VIII 2022

XXVI Chile Q-1 2022

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The e-Advocate Juvenile Justice Report


Vol. I – Juvenile Delinquency in The US

Vol. II. – The Prison Industrial Complex

Vol. III – Restorative/ Transformative Justice

Vol. IV – The Sixth Amendment Right to The Effective Assistance of Counsel

Vol. V – The Theological Foundations of Juvenile Justice

Vol. VI – Collaborating to Eradicate Juvenile Delinquency

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The e-Advocate Newsletter

Genesis of The Problem

Family Structure

Societal Influences

Evidence-Based Programming

Strengthening Assets v. Eliminating Deficits

2012 - Juvenile Delinquency in The US

Introduction/Ideology/Key Values

Philosophy/Application & Practice

Expungement & Pardons

Pardons & Clemency

Examples/Best Practices

2013 - Restorative Justice in The US

2014 - The Prison Industrial Complex

25% of the World's Inmates Are In the US

The Economics of Prison Enterprise

The Federal Bureau of Prisons

The After-Effects of Incarceration/Individual/Societal

The Fourth Amendment Project

The Sixth Amendment Project

The Eighth Amendment Project

The Adolescent Law Group

2015 - US Constitutional Issues In The New Millennium

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2018 - The Theological Law Firm Academy

The Theological Foundations of US Law & Government

The Economic Consequences of Legal Decision-Making

The Juvenile Justice Legislative Reform Initiative

The EB-5 International Investors Initiative

2017 - Organizational Development

The Board of Directors

The Inner Circle

Staff & Management

Succession Planning

Bonus #1 The Budget

Bonus #2 Data-Driven Resource Allocation

2018 - Sustainability

The Data-Driven Resource Allocation Process

The Quality Assurance Initiative

The Advocacy Foundation Endowments Initiative

The Community Engagement Strategy

2019 - Collaboration

Critical Thinking for Transformative Justice

International Labor Relations


God's Will & The 21st Century Democratic Process

The Community Engagement Strategy

The 21st Century Charter Schools Initiative

2020 - Community Engagement

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The Nonprofit Advisors Group Newsletters

The 501(c)(3) Acquisition Process

The Board of Directors

The Gladiator Mentality

Strategic Planning


501(c)(3) Reinstatements

The Collaborative US/ International Newsletters

How You Think Is Everything

The Reciprocal Nature of Business Relationships

Accelerate Your Professional Development

The Competitive Nature of Grant Writing

Assessing The Risks

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About The Author

John C (Jack) Johnson III

Founder & CEO – The Advocacy Foundation, Inc.


Jack was educated at Temple University, in Philadelphia, Pennsylvania and Rutgers

Law School, in Camden, New Jersey. In 1999, he moved to Atlanta, Georgia to pursue

greater opportunities to provide Advocacy and Preventive Programmatic services for atrisk/

at-promise young persons, their families, and Justice Professionals embedded in the

Juvenile Justice process in order to help facilitate its transcendence into the 21 st Century.

There, along with a small group of community and faith-based professionals, “The Advocacy Foundation, Inc." was conceived

and developed over roughly a thirteen year period, originally chartered as a Juvenile Delinquency Prevention and Educational

Support Services organization consisting of Mentoring, Tutoring, Counseling, Character Development, Community Change

Management, Practitioner Re-Education & Training, and a host of related components.

The Foundation’s Overarching Mission is “To help Individuals, Organizations, & Communities Achieve Their Full Potential”, by

implementing a wide array of evidence-based proactive multi-disciplinary "Restorative & Transformative Justice" programs &

projects currently throughout the northeast, southeast, and western international-waters regions, providing prevention and support

services to at-risk/ at-promise youth, to young adults, to their families, and to Social Service, Justice and Mental

Health professionals” in each jurisdiction served. The Foundation has since relocated its headquarters to Philadelphia,

Pennsylvania, and been expanded to include a three-tier mission.

In addition to his work with the Foundation, Jack also served as an Adjunct Professor of Law & Business at National-Louis

University of Atlanta (where he taught Political Science, Business & Legal Ethics, Labor & Employment Relations, and Critical

Thinking courses to undergraduate and graduate level students). Jack has also served as Board President for a host of wellestablished

and up & coming nonprofit organizations throughout the region, including “Visions Unlimited Community

Development Systems, Inc.”, a multi-million dollar, award-winning, Violence Prevention and Gang Intervention Social Service

organization in Atlanta, as well as Vice-Chair of the Georgia/ Metropolitan Atlanta Violence Prevention Partnership, a state-wide

300 organizational member violence prevention group led by the Morehouse School of Medicine, Emory University and The

Original, Atlanta-Based, Martin Luther King Center.

Attorney Johnson’s prior accomplishments include a wide-array of Professional Legal practice areas, including Private Firm,

Corporate and Government postings, just about all of which yielded significant professional awards & accolades, the history and

chronology of which are available for review online at LinkedIn.com. Throughout his career, Jack has served a wide variety of

for-profit corporations, law firms, and nonprofit organizations as Board Chairman, Secretary, Associate, and General Counsel

since 1990.


Clayton County Youth Services Partnership, Inc. – Chair; Georgia Violence Prevention Partnership, Inc – Vice Chair; Fayette

County NAACP - Legal Redress Committee Chairman; Clayton County Fatherhood Initiative Partnership – Principal

Investigator; Morehouse School of Medicine School of Community Health Feasibility Study Steering Committee; Atlanta

Violence Prevention Capacity Building Project Partner; Clayton County Minister’s Conference, President 2006-2007; Liberty In

Life Ministries, Inc. Board Secretary; Young Adults Talk, Inc. Board of Directors; ROYAL, Inc Board of Directors; Temple

University Alumni Association; Rutgers Law School Alumni Association; Sertoma International; Our Common Welfare Board of

Directors President 2003-2005; River’s Edge Elementary School PTA (Co-President); Summerhill Community Ministries

(Winter Sports Athletic Director); Outstanding Young Men of America; Employee of the Year; Academic All-American -

Basketball; Church Trustee; Church Diaconate Ministry (Walking Deacon); Pennsylvania Commission on Crime & Delinquency


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