Absolute immunity for prosecutor in witness-jailing case

A Genesee County prosecutor was correctly granted summary judgment of a civil-rights suit filed by a witness who claimed she was jailed for 12 days at the prosecutor’s behest after she balked at testifying at a preliminary exam.

The prosecutor has absolute immunity, the 6th U.S. Circuit Court of Appeals ruled, even if she was less-than-forthcoming with the judge who sent the witness to jail.

Karen Hanson, the assistant prosecutor, was trying to press gang-related racketeering charges against Marquan Cager.

Part of the case hinged on statements LaTasha Adams made about Cager a few years back in a domestic-violence complaint.

On the morning of Cager’s preliminary exam, Adams was served with a subpoena. She showed up at the courthouse. Hanson showed Adams a report documenting her statements about Cager and told her to prepare to testify.

Adams balked. She said she was six months pregnant, the pregnancy was high-risk and she was under a doctor’s care. And here’s another reason, she told Hanson. She didn’t make the statements and besides, none of them were true.

From this point forward, like the judges who ruled and reviewed the grant of summary judgment, we’ll accept Adams’ version of things as the truth.

According to Adams, Hanson went to the judge hearing the case and told him off-the-record that Adams would not testify in accordance with the report. Hanson suggested that the judge hold Adams in contempt. Hanson didn’t tell the judge that Adams had been subpoenaed only that morning, or that she voluntarily came to the courthouse.

What resulted was a mittimus order, signed by the judge, directing that Adams be jailed as a material witness until the court said otherwise. Adams said all this was done to coerce her testimony against Cager.

Adams was jailed for 12 days without the judge ever asking her if she would testify, without being offered counsel or an opportunity to post bond, and without any explanation of the basis of the detention.

Once jailed, Adams indicated she would testify. When the preliminary exam resumed 12 days later, she took the stand, testified, went home and celebrated the conclusion of her ordeal by hitting Hanson with a civil-rights suit.

The federal district court granted Hanson summary judgment on the basis of absolute prosecutorial immunity. The Sixth Circuit affirmed.

Said the Sixth Circuit:

The case thus presents an issue of first impression in this circuit: whether a prosecutor is entitled to absolute immunity for her false and misleading statements to a trial court in the course of criminal proceedings about the availability of a witness. …

We conclude that Hanson’s statements before the trial court at the preliminary examination regarding Adams’ availability as a witness fell within her role as an advocate for the State of Michigan and are therefore absolutely protected. The prosecutorial function includes initiating criminal proceedings, appearing before the court at a probable cause hearing or before a grand jury, seeking an arrest warrant, and preparing witnesses. …

Hanson’s challenged conduct involved the analogous acts of appearing at a preliminary examination and making statements about her discussions with a potential witness – activities “closely related … to h[er] role as an advocate” before the court in criminal proceedings. …

Furthermore, because the issuance of either a material-witness warrant or an order of contempt “is unquestionably a judicial act,” a prosecutor’s statements to the court regarding the availability of a witness are “‘intimately associated with the judicial phase of the criminal process’ … [and are] connected with the initiation and conduct of a prosecution, particularly where,” as here, “the hearing occurs after arrest [of the defendant]” in the criminal proceedings.

It doesn’t matter, said the Sixth Circuit, that Hanson, with an allegedly improper motive, approached the judge outside of a formal proceeding, talked to him off-the-record, and, according to Adams, lied to him about what was going on.

As this court has recently emphasized, “prosecutors do not forfeit their absolute immunity when they knowingly make false statements while advocating before the court,” Pittman v.Cuyahoga Cnty. Dep’t of Children & Family Servs., 640 F.3d 716, 725 (6th Cir. 2011), “‘so long as the statements were related to the proceeding[s]'” in which they were made … .

It’s good to be the prosecutor.

The case is Adams v. Hanson.

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MSC got it right on witness appearance rule

A Lansing State Journal editorial lauds the Michigan Supreme Court for properly balancing “a person’s religious beliefs with the cause of justice by giving judges the authority to require witnesses and parties to show themselves in court.”

The MSC amended Rule 611 of the Michigan Rules of Evidence so that judges can establish reasonable standards regarding the appearance of parties and witnesses to evaluate their demeanor when testifying, and to ensure accurate identification.

From the LSJ‘s editorial page:

The issue came up in a civil matter in which a woman of the Muslim faith arrived in court wearing a veil that covered all of her face except for her eyes. The judge asked her to remove her veil so that he could see her face and better assess whether her statements were truthful as she gave them.

She has filed a lawsuit in federal courts claiming discrimination.

But there is nothing discriminatory in secular courts having a consistent standard for witness behavior and appearance. What if a witness or plaintiff appeared in a Halloween mask, claiming this was part of his religious heritage? …

A veil may be a vital component to some women in the Muslim faith, but it also interferes with the court’s work. The Michigan Supreme Court had to strike a balance on those issues – and it found the right one.

Woman wouldn’t remove veil in court, evidence rule amendment considered

Ginnah Muhammad is a practicing Muslim who wears a hijab, a head scarf and veil that covers her entire head except for her eyes.

Her refusal to remove it to testify at her small-claims case against a car rental company has prompted the Michigan Supreme Court to consider a proposed amendment of MRE 611.

Muhammad rented a car from Enterprise Leasing. Enterprise charged her for damage to the car. Muhammad responded by filing a small-claims suit to get her money back.

Thirty-First District Court Judge Paul J. Paruk, sitting as the small-claims court, told Muhammad she had to remove the veil before she could testify. The judge said he needed to see her face so that he could better assess her credibility.

Muhammad balked. She told Paruk she would remove the veil only for a female judge.

Paruk dismissed her case without prejudice.

Enterprise, in the meantime, filed a small-claims suit against Muhammad. She removed it to the 31st District Court. This set up another confrontation with Paruk, who is that court’s only judge. Muhammad asked Paruk to recuse himself from the case. Paruk denied the request and awarded Enterprise $2,083 in damages. Muhammad’s appeal is pending in Wayne County Circuit Court.

But it’s not just about the two grand. Muhammad sued Paruk in federal district court. She alleged that Paruk’s insistence that she remove her veil violated her First Amendment right to free exercise of religion and denied her access to the court system. See, Muhammad v. Paruk, 553 F. Supp. 2d 893 (E.D. Mich. 2008).

U.S. District Court Judge John Feikins declined to exercise jurisdiction over the case. But in doing so, he noted that under Employment Division v. Smith, 494 U.S. 872 (1990), “the right to free exercise of religion does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.”

Feikins then explained why he wouldn’t hear the case:

[I]f Paruk has a valid, neutral and generally applicable policy of requiring witnesses to keep their faces visible while giving testimony, that policy would not violate Muhammad’s right to free exercise of her religion. Determining if Paruk has such a policy and, if he does, deciding whether it is valid, neutral and generally applicable would necessitate a detailed examination of how Paruk manages his court room as a state court judge. Conducting this type of review as a federal judge would undoubtably increase friction in the relationship between our state and federal courts. I find, therefore, that respect for the relationship between our state and federal courts weighs heavily against exercising jurisdiction over Muhammad’s declaratory judgment action for violation of her right to free exercise of her religion.

The proposed amendment of MRE 611 would give Michigan judges the framework to create the neutral policy Feikins mentioned:

(b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.

A staff comment to the proposed amendment explains:

This proposed amendment would clarify that a judge is entitled to establish reasonable standards regarding the appearance of parties and witnesses to evaluate the demeanor of those individuals and to ensure accurate identification.

The court is accepting comments on the proposed amendment through April 1, 2009. Send them by e-mail to MSC_clerk@courts.mi.gov or by regular mail to Box 30052, Lansing, MI, 48909.