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THIS WAY OR THAT WAY
By Dave Harrison

From a position of power you will realize vindication and freedom; information gives you power; discovery provides you information. Discovery is the right of every litigant, thus to unlock the vault where all the information is kept you must be a party to litigation, either as the plaintiff, or as a defendant.

A defense lawyer once told me that convictions are virtually predetermined in every prosecution. This is so, he expressed, because prosecutors are able -- even encouraged -- to conceal exculpatory evidence, fabricate exculpatory evidence, and to knowingly present wholly false and perjured testimony. Discovery in criminal prosecutions seldom yields but the tip of the iceberg. The sage lawyer explained to me that the real game is played post-conviction, where the goal is to convince an appellate court to provide an evidentiary hearing, and with it, precious discovery. The government knows the game too, as do the judges of the appellate courts. Evidentiary hearings are, therefore, rarely provided. There are other ways into the vault.

Civil litigation will get you the treasures you seek. Of course, you cannot sue the judge who presided over your case, because he has absolute immunity from liability and damages for his judicial or adjudicary acts. See, Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Mireles v. Waco, 502 U.S. 9 (1991); Stump v. Sparkman, 435 U.S. 349 (1978). Your prosecutor has, depending on the nature and timing of his malfeasance, either absolute or qualified immunity from suit. See, Anderson v. Creighton, 483 U.S. 635 (1987); Imbler v. Pachtman, 424 U.S. 409 (1976). Worse yet, civil litigation against the judge, prosecutor, or agents involved in your prosecution and conviction is barred by the Supreme Court holding in Heck v. Humphrey, 512 U.S. 477 (1994), regardless of the magnitude of the constitutional violations (civil litigation against government personnel barred where a favorable judgment would necessarily call into question the validity of the criminal conviction). Nonetheless, civil litigation provides you two ways into the vault.

The Heck holding protects government personnel, not so the private citizens involved in your case. In the course of criminal prosecutions any number of such persons fabricate their testimony, conceal evidence, thwart your access to the court, interfere in matters between you and defense counsel, or otherwise violate your constitutional rights while sleeping with the government; violations of, for example, your First, Fifth, and Sixth Amendment rights. Those persons are liable for their actions by means of civil litigation. Once civil litigation is filed and served, all the precious gems of discovery are yours for the taking, and not only discovery from the named parties, but from unnamed third parties too. See, Federal Rules Of Civil Procedure, Rule 45 (discovery of non-parties). You can get into the government's vault by way of civil litigation of a non-government person. In many cases the private citizen simply will not have the time, knowledge nor ability, to access the myriad and confusing materials necessary for self-representation. Paid counsel is cost prohibitive. It is a rare instance where the individual being sued can bear the financial burden of prolonged litigation. The attorney that does come on board will require up front cash in amounts usually out of reach or reason to the average person. The attorney who does come on board quickly jumps ship when he begins to be peppered with your filings, including wide ranging discovery requests. When it starts to set in the attorney’s mind that you are determined in your efforts, the attorney will demand greater and greater amounts of cash from the client; cash the client seldom has or is reluctant to part with. Either the party being sued or his attorney will abandon ship. You win either way, but plan accordingly. Be prepared to get exactly what you asked for in the Complaint. Monetary considerations aside, your asserted facts and claims will be established. Keep this in mind when drafting the Complaint. For example, did you assert that the person being sued committed perjury? Did you claim that the person concealed exculpatory evidence at the behest of law enforcement agents? Obviously, the value of a judgment as to such assertions and claims, by default or otherwise, would be enormous. In the event the person being sued does fight you, then before obtaining the judgment you seek you will have a right to the full panoply of discovery. So whether your Complaint is contested or not the effort is win-win for you. What if the circumstances do not lend themselves to suing any of the witnesses? How then can you get discovery through litigation? There is another way.

Recall that discovery is the right of every litigant, plaintiff and defendant. Your situation may require that you become a willing defendant to civil litigation; turning the clich´┐Ż "so sue me" to your advantage. Be aware; in the event you have already been convicted of a crime and are incarcerated you may not have assets and income, but if you are still free, flush with assets and income, then there are certain risks inherent with being sued. In this tactic your goal is to cause a person to bring suit against you in regards to the matters directly related to your criminal prosecution/conviction. Only you can weigh the pros and cons of encouraging litigation that you may lose and suffer a financial judgment -- weighed against the boundless discovery you will reap in the process, discovery that may free you from the unjust conviction against you (or that may persuade the government to drop its case prior to trial). From a position of power you will realize vindication and freedom; information gives you power; discovery provides you information. Getting a person to sue you is not at all difficult, thanks to Americans being the most litigious people in the world, and because we have more lawyers per capita than any other country. Published statements, true and accurate as they are, may be of the nature that the person has to challenge them. For example, correspondence to friends and neighbors and notices to the media making it known that a person active in your trial committed perjury, concealed exculpatory evidence or was otherwise sleeping with the government may incite the person to bring an action in libel against you. Also, orally accusing someone of horrendous, infamous or unspeakable private behavior can result in a slander suit, because the person, despite knowing the truth of your pronouncement, has no choice but to deny what you have said and attempt to protect his soiled reputation. The nexus to your case, of such oral accusations, might be that the government proactively shielded the person from prosecution for his private behavior in exchange for specified actions helpful to the government’s prosecution of you. False statements and fanciful pronouncements are not necessary, and I am not promoting any such conduct (no crime a man commits in behalf of his freedom, however, can be as great as the crimes committed by those who deny his freedom). Moreover, a civil jury will sense the truth and be sympathetic to it. Before concluding, let me point out Federal Rules Of Civil Procedure, Rule 56(f), which holds that the court should not rule on a motion for summary judgment until the non-moving party has had the opportunity to discover information essential to his opposition of such a motion. Rule 56(f) allows a party who lacks the essential evidence necessary to oppose the movant’s motion for summary judgment, to endure the motion by presenting the court with valid reasons for the lack of proof and showing how postponement of a ruling on the motion will permit discovery of evidence essential to his opposition. Diligence is crucial. To justify a 56(f) ruling you must demonstrate that you have pursued discovery diligently, but for reasons beyond your control essential evidence remains outstanding. Your supporting declaration must be thorough and detailed; vague or conclusionary allegations as to why discovery has not been completed will fail. Therefore, you must initiate discovery immediately upon service of the Complaint. Thereafter, should your opponent file for summary judgment, use Rule 56(f) as a weapon to get the court to compel him to provide discovery. Rule 56(f) is powerful. In one particular case, I was able, by using Rule 56(f), to convince the moving party to seek dismissal of his summary judgment motion rather than have the court compel discovery. Settlement talks followed, and the case was resolved favorable to my position, because the opposing party literally had too much to hide.

Whether This Way, as plaintiff, Or That, as defendant, every litigant has the right to discovery. Discovery provides information. Information gives you power. From a position of power you will realize vindication and freedom.

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