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Analysis of Decision
I shall not address that portion of this decision which may be correct as a matter of law since I am not familiar with the underlying facts of the case. However, I shall address the holding of this 3 judge panel that touchs upon interpretations, actually misrepresentations, of law which, on their face, are obnoxiously erroneous statements tending to deprive citizens of their protectable guarantees.
To begin this analysis there must be an understanding of the types of "immunity" referenced herein, judicial and prosecutorial. Though not codified in law, these immunities are a natural, and logical, consequence of the nature of the power granted. And, in a civilized society, for the protection of liberty, it must be preserved. However, they MUST not be expanded by appellate judicial decree beyond that scope which is necessary for the expedient and complete rendition of justice. As Justice Holmes once observed, "Judicial immunity, though broad, is not without limits."
In this case, these judges have gone too far by inserting into the language of the statutes concepts which do not appear in the syntax and which are foreign to their clear meaning and intent thereof.
They cite O.C.G.A. 15-6-21 and say, "... may only result in impeachment or a writ of mandamus.' Here is a prime example of one of the methods, deceptive advocacy, by which corrupt or incompetent judges cover other corrupt or incompetent judges' thereby unlawfully depriving the citizens of this State of their rights.
First, there is no use of any adjective, verb, or adverb which imparts to the mind of common intelligence the cognizance of exclusiveness of penalty as these judges imply. Secondly, nowhere in the language of that statute does the word "mandamus" appear, though it does appear in other statutes. Because of their inclusion of the word mandamus they, at one and the same time, proffer that the only remedy under statute is Impeachment, (to which no citizen has recourse in Georgia in violation of the Constitutional mandate to the contrary) and, in the same breath, include mandamus which does not appear in that statute, but does appear in other statutes of the state. Their inclusion of "mandamus" destroys their attempt at logical correctness to read exclusiveness into a statute where none exist and prior Legislative action and intent, and prior case law precedent, dictates otherwise.
Next, these judges attempt to have the reader believe that a prosecutor has absolute immunity at all times by their recitation of, "The prosecutorial function includes the initiation and pursuit of criminal prosecution and all appearances before the court. . . . Under these principles, it is clear that, even if [the prosecutor] knowingly proffered perjured testimony and fabricated exhibits at trial, he is entitled to absolute immunity for doing so. Id.."
On its face this recitation appears to lead one to believe in absolute prosecutorial immunity at all times. This is not case law precedent. There is at least one exception to the rule and that is when a prosecutor swears under oath that a matter before a body considering the evidence that the contents of his representations are true. The simple act of making an oath removes the cloak of immunity. Whether this was done by the prosecutor in the case before these judges I know not, and therefore do not express an opinion as to the underlying facts, only that their recitation is, in its implied scope, overbroad and not an accurate statement of law.
In furtherance of the duty of grand jurors to protect the person and property of their fellow citizens from governmental abuse, whether executive, legislative, or judicial, they should require ALL prosecutors to submit to an oath prior to the production of evidence to the effect that the evidence produced by him is not suborned perjury or manufactured evidence. Still, there would be those who, in a corrupt political and social climate, would take a chance, but at least they would do so without the cloak of immunity.
Careful research over the years coupled with an understanding of the public interest intent of the Legislature, good public policy, and the implications of the verbiage of these judges mandates that if this Clayton County Judge Matthew Simmons did, in fact, refuse, or neglect, without providential hindrance, to "decide promptly" a matter submitted to him he is subject not only to impeachment, but tort under §1983, and worse, a charge of theft as contemplated in O.C.G.A. 16-8-2 and a charge of Willfully and intentionally refusing to comply with an official oath of office as contemplated in O.C.G.A. 16-10-1 at the discretion of the local grand jury.
These judges have now set a dangerous, unwarranted, and damnable precedent in the concept of "not acting in the clear absence of all discretion." The reason is simple. Refusing to exercise a judicial duty when mandated by law, in the words of the Honorable Mr. Chief Justice Marshall, is treason upon our Constitution. Where there IS NO RIGHT GIVEN IN LAW to decline the exercise of judicial power, there IS NO "discretion"; and there may not be a grant of Immunity of any kind for that criminal negligence!
Oh, Lord, my God, is there no help for thy people? And I heard a still small voice say, "Behold, I shall help those who help themselves, but to him who delights in iniquity, who subverts My law, turning it to an instrument of plunder, he has his reward, it is as a millstone about his neck." So mote it be!
Paul L. Nally
Former Judge,
827 Militia District,
Georgia
Posted Sep 30 2006 9:49PM CEST
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Paul Nally
Rydal, Georgia |
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