Every single reference existing today to prosecutorial misconduct assumes one thing. The prosecutor actually bothers with a case to begin with.
When a prosecutor does not ever bother with a case, or turns a “blind’s eye” away from a case [1] the condition of inaction prohibits discretion. Discretion can only be accomplished after consideration. Ignoring allegations, ‘turning a blind’s eye’ to serious felonies is not affording consideration to any potential decision.
That condition is hard to find. “Prosecutorial abuse is, in the words of noted Harvard Law School professor Alan Dershowitz, ‘rampant.'” [1]
The abuse Dershowitz referred to was a step past the most serious abuse of the legal system. The total ignoring of serious felonies; failure to even consider charges and if chargers are considered the complete disregard for the rule of law and equal protection by not informing a controlling court who also happens to be the victim. And if having informed said court then fails to provide equal protection and inform the other party to that injury.
A January 30, 2012 memo 27 of the Justice Department: Coordination of Parallel Criminal, Civil, Regulatory, and Administrative Proceedings, stated agency policy: [5]
“Department policy is that criminal prosecutors and civil trial counsel should timely communicate, coordinate, and cooperate with one another and agency attorneys to the fullest extent appropriate to the case and permissible by law, whenever an alleged offense or violation of federal law gives rise to the potential for criminal, civil, regulatory, and/or agency administrative parallel (simultaneous or successive) proceedings. By working together in this way, the Department can better protect the government’s interests (including deterrence of future misconduct and restoration of program integrity) and secure the full range of the government’s remedies (including incarceration, fines, penalties, damages, restitution to victims, asset seizure, civil and criminal forfeiture, and exclusion and debarment).
Courts have recognized that “[t]here is nothing improper about the government undertaking simultaneous criminal and civil investigations” provided that we use those proceedings and associated investigative tools for their proper purposes and in appropriate ways. United States v. Stringer, 535 F.3d 929, 933 (9th Cir. 2008), vacating in part, and reversing in part, United States v. Stringer, 408 F. Supp. 2d 1083 (D. Or. 2006); see also United States v. Kordel, 397 U.S. 1, 10 (1970) (“It would stultify enforcement of federal law to require a government agency … invariably to choose either to forego recommendation of a criminal prosecution once it seeks civil relief, or to defer civil proceedings pending the outcome of a criminal trial.”); SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1374 (D.C. Cir. 1980) (en banc) (“In the absence of substantial prejudice to the rights of the parties involved, such parallel proceedings are unobjectionable under our jurisprudence.”).[FN1]
The question, is what is substantial prejudice? Substantial prejudice is a rather subjective term. Prejudice , on the other hand is not. PREJUDICE. Merriam Webster defines it as “to injure or damage by some judgment or action (as in a case of law).” The Free Legal Dictionary defines Prejudice as: “To decide beforehand; to lean in favor of one side of a cause for some reason or other than its justice.” US Legal says [4]: “Prejudice means “pre-judging” something. In general, it implies coming to a judgement on the subject based on false beliefs or before knowing where the preponderance of the evidence actually lies. Prejudice may involve discriminatory attitudes of individuals toward people or things or impairment to the rights of a party in a legal dispute.” The actual Legal Dictionary [3] says: “A preconceived, unreasonable idea or feeling, especially a hostile one, with regard to a particular ethnic, racial, social, or religious group.”
“Discretion is a term often used but difficult to define. A comprehensible definition may be found in Vorenberg, Narrowing the Discretion of Criminal Justice Officials, 1976 DuKE L.J. 651: For our purposes discretion can best be seen as a residual concept-the room left for subjective judgment by the statutes, administrative rules, judicial decisions, social patterns and institutional pressures which bear on an official’s decision. Our system gives no official unlimited discretion and every decision or action involves some exercise of judgment. A precise definition is not crucial since discretion is a relative concept-more or less free rein for decisions by public officials. As long as this is understood, Judge Breitel’s simple definition may suffice: “[Power to consider all circumstances and then determine what legal action is to be taken.” [2]
“Prosecutorial discretion refers to the power of the Executive to determine how, when, and whether to initiate and pursue enforcement proceedings.” [6]
The one thing all definitions grossly imply is the total lack of reasoning. The total lack of consideration. Stated another way: Prejudice is without contemplation, the one and single requirement for discretion. Prosecutorial Blind Eye is not an accepted job task of prosecutors. It is, in fact non-feaseance.
When the issue is one of there being discretion or there not being discretion, any failure to exercise prosecutorial discretion is a very substantial prejudice. It creates non-enforcement. The same outcome as a decision to not prosecute but not at all protected by the nearly royal protections afforded to prosecutors when actually performing the job of discretion.
“The discretion of the Executive to determine when and whether to bring or abandon such enforcement actions, and how vigorously to pursue them, is prosecutorial discretion.” [6]
When no determination is made at all, or when no determination is made known to a controlling court (especially when the court is the victim) there has been no discretion made. When there has been no notification to the other victims of the same crimes there has been no discretion made -or- if the court has been notified, there is a concerted effort to deprive the other victims of equal protection.
In the instant issues; one of theft of U.S. Legal Mail and the other of Censorship by a state government over a branch of the United States Government; three factors control the validity of the prosecutor’s hand:
1 Was the prosecutor or a law enforcement entity informed of the existence of such violations of the Constitution and federal law?
2 Absent any prosecution: did the failure of any consideration allow applicable statues of limitations to expire?
3 Are the issues still existing in a criminal prosecution? In other words: was discretion actually performed and is that investigation ongoing?
The issue of theft of U.S. Legal Mail goes back to the Fourth Circuit Charleston South Carolina District court in 2004 and was repeated again starting in 2016 in the Ninth Circuit Phoenix District Court and continuing into the Ninth Circuit Appeals Court. There has been no prosecution. Was the prosecutor or a law enforcement entity informed of the existence of such violations of the Constitution and federal law? If not, Misprision would be the controlling factor: Misprision is “Criminal neglect in respect to the crime of another: used especially in connection with felonies and treason, to indicate a passive complicity, as by concealment, which falls short of the guilt of a principal or accessory.” [7] It cannot be remotely contemplated that a federal court would knowingly commit Misprision of a Felony. Impossible.
“For both the mail and wire fraud statutes, the statute of limitations is five years. The statute begins to run from the last use of mails or wires in furtherance of the scheme. This is an important note, because the statute does not begin to run at the formation of the scheme, but rather at the last use of the mails or wires. This means that the scheme can be five years old, but if it is still going and the mails are last used in furtherance of it in the fifth year, only then will the statute of limitations begin to run.” [8]
The last theft of mail in the Fourth Circuit expired in 2010. No prosecution is possible now, nor has it been for six years. Yet the case in question (Hempfling v L.M. Communications et.al.) remains hidden, missing docket numbers where the opinion should be. The same applies to the Fourth Circuit Appeals Docket but in that case the second issue of that case may be controlling.
In Hempfling v L.M. Communications et.al. a counter claim was filed. That court claim was solely based on a press release issue by the plaintiff that detailed deep state, shadow government corruption permeating multiple executive agencies and the NAACP. Statues of limitations would have run out in 2015 for those crimes. Yet that case stood still as ‘in another court’ until shortly after I objected to the Justice Department a few months ago.
Fast forward to 2011 when a state Supreme Court case was placed on hold following a bribery scheme being uncovered inside the Pinal County Clerk of Court’s office. Hiding filed documents in order to force a false default. Seven years is Arizona’s limitation but if prosecutors pushed a “felony involving falsification of public records” (would be hard to prove as not entering is not falsifying) there would be no limitation. Yet that case, Hempfling v CVDC Holdings et.al. has sat unfinished, with no final order since it was illegally placed in stay limbo in 2014. In 2015 a law suit was filed in federal district court in Arizona to force the state court to be released. The county prosecutor defending (one of a few) even begged the court not to force its release. That case has been sitting with an empty docket number where the opinion should be for a very long time.
The appeal of that case has sat in the Ninth Circuit Appeals Court docket with a missing docket number where the opinion should be, yet the mandate was issued by the appeals court for the District court order that has never been divulged.
More U.S. Legal mail was stolen after those cases were mandated and those crimes are still available to be prosecuted.
Without being informed: “criminal prosecutors and civil trial counsel should timely communicate, coordinate, and cooperate with one another and agency attorneys to the fullest extent appropriate to the case and permissible by law, whenever an alleged offense or violation of federal law gives rise to the potential for criminal, civil, regulatory, and/or agency administrative parallel (simultaneous or successive) proceedings.” [2] The prosecutor is not only violating a department directive, but it also violating the rights of due process to the Plaintiffs of each of these mentioned cases.
Being pro-se does not permit the prosecutor to treat the litigant any different than that of a qualified , bar passed and practicing attorney.
Perhaps Prosecutorial Blind Eye is a condition imposed upon a prosecutor when having to deal with a self-represented litigant? But I don’t think so.
The Supreme Court noted that “[i]n the federal courts, the right of self-representation has been protected by statute since the beginnings of our Nation. Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the First Congress and signed by President Washington one day before the Sixth Amendment was proposed, provided that ‘in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of counsel.'”
Made to adhere to the rules and law of the court in a far stricter manner than licensed counsel, Pro Se Litigants have every right to be treated exactly the same.
So the option is substantial prejudice to the rights of the Executive Branch or substantial prejudice to the rights of the Plaintiffs. Or both.
In the mean time: all of these cases rest dead on their respective dockets and not one thing has been done to protect the integrity of any of the Courts.
Either the DOJ has not bothered with enforcing the protections of the nation it is charged with exercising or the courts are corrupt.
Newsflash: U.S. Courts are NOT corrupt!
[1] Christopher Zoukis writing in Criminal Legal News March, 2020 stated in the title. “Prosecutorial Misconduct: Justice Denied as the System Turns a Blind Eye” https://www.criminallegalnews.org/news/2020/feb/18/prosecutorial-misconduct-justice-denied-system-turns-blind-eye/ quoting Judge Alex Kozinski, formerly of the U.S. Court of Appeals for the Ninth Circuit.
[2] https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=2016&context=facpub
[3] https://legaldictionary.net/prejudice/
[4] https://definitions.uslegal.com/p/prejudice/
[5] https://www.justice.gov/jm/organization-and-functions-manual-27-parallel-proceedings
[6] PROSECUTORIAL DISCRETION POWER AT ITS ZENITH: THE POWER TO PROTECT LIBERTY PETER L. MARKOWITZ See generally U.S. DEP’T OF JUSTICE, PRINCIPLES OF FEDERAL PROSECUTION, U.S. ATTORNEY’S MANUAL § 9-27.001 (1997) (discussing the appropriate role of prosecutorial discretion); U.S. DEP’T OF JUSTICE, IMMIGRATION & NATURALIZATION SERV., PROSECUTORIAL DISCRETION GUIDELINES (2000) (same); Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 CONN. PUB. INT. L.J. 243, 244 (2010) (same). The precise boundaries of prosecutorial discretion are discussed infra at notes 21-23, 258-260 and accompanying text.
[7] https://www.wordnik.com/words/misprision
[8] https://federalwirefraud.com/wiremail-frauddefense/statute-of-limitations/