U.S. Dist. Judge Donald L. Graham: A Test Case For Abrogating Or Modifying Absolute Immunity

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham, “Teflon Don”, A Bad Mother&&#!@, Shut Your Mouth!!

Purpose of This Post

This post posits the idea that absolute immunity or judicial immunity as it presently exists does not serve the interest of the American public.  Judicial Immunity as it is presently interpreted by judges allows judges to intentionally disregard prevailing standards and inflict damage on individuals with impunity. The Supreme Court decreed that judicial immunity in effect is a necessary evil, the price to be paid for an independent and fearless judiciary. Judges should not feel free to engage in reckless behavior in total disregard of well-established law.  It is unremarkable in American jurisprudence that bad acts or lawlessness behavior has consequences for the perpetrator.  This post examines the behavior of U.S. Dist. Judge Donald L. Graham to make the case that “judicial immunity” can be exploited not for any great societal need, but for the benefit of the individual judge in escaping accountability for his or her commission of lawless acts that have no pretense of validity.  The larger picture, or the view from above, illustrates the extreme measures that the Eleventh Circuit, U.S. Court of Appeal has employed to keep Judge Graham being held accountable for his unlawful and oppressive acts.  If the threat of a civil suit against a mean spirited and vindictive judge “intimidates” the judge into complying with the rule of law, then where is the harm to society?   Stump v. Sparkman, 435 U.S. 349, 369 (1978)(“And if intimidation would serve to deter its recurrence, that would surely be in the public interest.”)

Absolute Immunity Or Judicial Immunity

A fact that is probably unknown to the overwhelming majority of Americans is that the judges of the United States have given themselves-because both the Constitution and Congress [statutes] is silent on the issue-absolute immunity to be free from lawsuits from their unlawful behavior.  “Absolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.” Butz v. Economou, 438 U.S. 478, 512 (1978).  This absolute immunity applies even if the judge intentionally, knowingly, and/or willingly disregards the law. A judge can not be held accountable or subject to a lawsuit for his or her reckless disregard of clearly established law. A long line of the U.S. Supreme Court “precedents acknowledges that, generally, a judge is immune from a suit for money damages.Mireles v. Waco, 502 U.S. 9 (1991). “Although unfairness and injustice to a litigant may result on occasion, ‘it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.‘” Id. at 10.  “‘[I]mmunity applies even when the judge is accused of acting maliciously and corruptly’“. Mireles v. Waco, 502 U.S. 9,11 (1991).  This notion of absolute immunity is partly premised on the idea that appellate review is available to correct “mistakes” of judges.  Not all Supreme Court justices have agreed with this line of reasoning, it was Justice Potter Stewart who said: “But the conduct of a judge surely does not become a judicial act merely on his own say-so. A judge is not free, like a loose cannon, to inflict indiscriminate damage whenever he announces that he is acting in his judicial capacity.”  Stump v. Sparkman, 435 U.S. 349, 367 (1978). Lastly, if Judge Graham’s apparent sycophants at the Eleventh Circuit, U.S. Court of Appeal have their way then Judge Graham’s dastardly and nefarious deeds will go unpunished.

Judicial Immunity Derived By A Negative Act

The constitution of the United States does not grant any judge immunity.  The Congress has not enacted any statute granting judges any immunity from civil suits.  One would think that if the founders of this country considered judicial immunity to be indispensable to the proper functioning of the United States as the judges who benefit from judicial immunity claims it is, they [the founding fathers] might have included some provision in the constitution for it.  Where does the legal authority for judicial immunity come from?  The answer is from judges themselves.   The legal reasoning and logic goes something to the effect of since the Congress did not abrogate judicial immunity, we have judicial immunity.  In other words, rather than make the argument that Congress took the affirmative act of granting judicial immunity, the proponents say they have judicial immunity because of what Congress did not do.  See Bradley v. Fisher, 80 U.S. 13 Wall. 335 335 (1871).

Irony and Hypocrisy

At its core the concept of judicial immunity says that a judge should not be held accountable for his intentional disregard of the rule of law.  Every federal judge takes an oath to uphold the Constitution and laws of the United States.  See 28 U.S.C. § 453.  Sitting on their lofty perch, every day federal judges lecture to criminal defendants about taking responsibility for their actions.  At the same time these judges are lecturing criminal defendants about accepting responsibility for their reckless behavior, a government appointed attorney-an Assistant U.S. Attorney, is in courtroom B before a colleague fellow judge arguing that he or she should not be held accountable for his reckless disregard of the law.  Judicial immunity for recklessly disregarding procedural fairness and the rule of law eviscerates the egalitarian notion that everybody is equal under the law.  Judicial immunity for reckless acts breeds arrogance in the judge who simply says that because I am a judge you can’t touch me.  What purpose is served by granting immunity to a judge who recklessly and intentionally violate clearly established law?

The Greater Good Argument

Judges would have the American public to  believe that judges awarded themselves absolute immunity not because of their own self interest, but to some nebulous greater good idea.   “Although unfairness and injustice to a litigant may result on occasion, it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.” Mireles v. Waco, 502 U.S. 9,10 (1991).  Immanuel Kant, a widely respected German philosopher, once said: “Act only according to that maxim whereby you can at the same time will that it should become a universal law.”  Surely, this greater good argument should also be applicable in other professions-say the medical profession for an example.  It is beyond rational argument that doctors serve an invaluable and indispensable need to mankind.  However, doctors unlike judges, can not make the argument that I should not be sued because “mistakes”, incompetence, willfulness, and negligence must be tolerated because of society’s great need for doctors.

Debunking the Appellate Review Argument

The U.S. Supreme Court clings to the argument that: “Most judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability.”  Forrester v. White, 484 U.S. 219 (1988).” At the same time, the safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct. The insulation of the judge from political influence, the importance of precedent in resolving controversies, the adversary nature of the process, and the correctability of error on appeal are just a few of the many checks on malicious action by judges.” Butz v. Economou, 438 U.S. 478, 512 (1978).  These arguments fail for a couple of reasons.  Firstly, there is no guarantee that the “judicial mistake” will ever be corrected on appeal.  The Eleventh Circuit, U.S. Court of Appeal, uses unpublished opinions to get the result it desires.  These unpublished opinions often create a thiefdom where no law prevails, but only the desires of the judges involved to seek a desired outcome.  Unpublished opinions are the weapon of choice in the war against the rule of law.  Appellate review is easily undermined by appellate judges.  See Eleventh Circuit Case No. 01-13664: The Appeal From Hell.  Where there is no appellate review, judicial immunity should not apply. In Stump v. Sparkman, 435 U.S. 349, 370 (1978), Justice Lewis F. Powell, Jr. wrote a dissent which stated: “But where a judicial officer acts in a manner that precludes all resort to appellate or other judicial remedies that otherwise would be available, the underlying assumption of the Bradley doctrine is inoperative.” Secondly, the notion that a favorable appeal decision remedies a wrong is not adequate.  Suppose that a judge knowingly and intentionally disregards the rule of law and improperly incarcerates someone.  Would a successful appeal following six months or a year of incarceration be an adequate remedy for falsely imprisoning an individual?  The appeal does nothing to punish the rogue judge.  Where is the disincentive to a reckless disregard of the rule of law?

A Real Life Situation That Should Be Subject To Immunity

U.S. Dist Judge Donald L. Graham has exhibited a reckless behavior and a total and utter disregard for the rule of law.  It is difficult to argue that Judge Graham’s behavior has not been contemptuous and disdainful to the rule of law. Judge Graham’s defiance of well established law has inflicted the following damage on Mason:

  • Judge Graham has terrorized both Mason his children who had to live with Judge Graham’s reckless and lawless behavior.
  • 5 years supervised release probation
  • A special condition that precluded Mason’s use of the Internet.  This is a really pernicious punishment as Mason made his living as a MCSE, Micrsoft Certified System Engineer, CNE, Certified Novell Engineer working on computer networking and internetworking systems.
  • $200,000 in legal fees when Judge Graham had ceded jurisdiction of the case.
  • Use of U.S. Marshal and Power of U.S Attorney to Stop Criticism of Judge Graham, See mcneilmason.wordpress.com, post Power of US Government Used To Suppress Criticism of U.S. Dist. Judge Graham“.

In order to inflict this damage, Judge Graham intentionally disregarded prevailing legal standards and fundamental notions of due process which included, but is not limited to the following patently unlawful behavior:

  • Judge Graham denied Mason due process by disregarding the requirements of Federal Rule of Criminal Procedure 42(b) by failing to state “the essential facts constituting the criminal contempt charged” and describing them as such. The supposed show cause order rendered by Judge Graham describes “contemptuous acts” that are completely different from the information filed by the Government. The bench trial proceeded based upon the information and not the “essential facts” or “”contemptuous acts” listed in the show cause order. See “Judge Graham Violated Mason’s Due Process Rights by Disregarding the Criminal Contempt Procedure“.
  • Judge Graham used a clearly void sua sponte issued pre-filing that was rendered on September 20, 2001 [Docket Entry No. 878 or (D.E. 878)] to form the basis of a criminal contempt complaint and conviction. The information alleges a violation of this sua sponte issued pre-filing injunction. This sua sponte issued pre-filing injunction has multiple due process flaws and jurisdictional defects. This sua sponte issued pre-filing injunction lacks the requisite factual finding. This sua sponte issued pre-filing injunction misstates material facts. Judge Graham is willingly flaunting the law.  See “Judge Graham Is Willfully Flaunting The Law“.
  • The Eleventh Circuit, U.S. Court of appeal assisted Judge Graham in denying Mason’s civil rights by repeatedly refusing to review this sua sponte issued pre-filing injunction for validity.  See “The Co-Conspirators and Appellate Review“. This sua sponte issued pre-filing has never been reviewed for validity.
  • Judge Graham was motivated in part by his desire to intimidate and retaliate against Mason for filing 28 U.S.C. § 372(c) against him.  See “Circumstantial Evidence and Judge Graham’s Motive “.
  • Judge Graham used the criminal contempt procedure to attempt to force Mason to drop a lawsuit against him.  See “Contempt Abuse And Coercion To Drop Lawsuit Against Judge Graham “.
  • Judge Federico A. Moreno, a colleague of Judge’ Graham refuses to endorse Judge Graham’s abusive conduct with respect to the contempt procedure and conviction. Judge Moreno makes only the mitigating argument that Judge Graham did not act in bad faith. See “Chief Judge Federico A. Moreno Declines to Endorse Judge

Support for these allegations are fully set forth at “http://mmason.freeshell.org/blog/should_us_dist_judge_graham_be_criminally_indicted.htm” and “http://donaldlgraham.blogspot.com/2008/09/is-us-dist-judge-donald-l-graham.html“.  These sites ask the question:  “Is U.S. Dist. Judge Donald L. Graham a Criminal?” Additionally, even more outrageous conduct is set forth at: Egregious Documented Acts of Judicial Misconduct by Judge Donald L. Graham

Previous Acts by Judge Graham Subject To Immunity

Judge Graham has engaged in other acts which demonstrate a reckless disregard for the rule of law. See FEDERAL JUDGE VIOLATES FIRST AMENDMENT, TENTH AMENDMENT RECEIVES ABSOLUTE IMMUNITY.  In one of its many acts of artifice, the Eleventh Circuit, U.S. Court of Appeal in another related matter, whipped out its number one weapon-the unpublished opinion-against the rule of law to conclude that Judge Graham’s behavior was protected by judicial immunity.   See Marcellus M. Mason, Jr. v. Highlands County, 54 Fed. Appx. 934; 2002 U.S. App. LEXIS 27909, * (11th Cir. 2002)(affirmed). The secret unpublished opinion, Case No. 02-13418, is quite revealing and insightful for what it doesn’t say.  Judge Graham was sued for an intentional reckless disregard for the First and Tenth Amendment to the United States Constitution.   However, in the opinion there is absolutely no mention of the facts that gave rise to the lawsuit.  Reading the opinion, the reader is left only with the legal conclusion that Judge Graham is entitled to absolute immunity without knowing what Judge Graham is immune from.  If Judge Graham is clearly entitled to absolute immunity then why won’t the Eleventh Circuit say what he is immune from?

Grave Procedural Error is Entitled To Judicial Immunity

The Supreme Court has stated that “grave procedural error” is entitled to judicial immunity. “A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors.” Stump v. Sparkman, 435 U.S. 349, 359 (1978). This rational is woefully inadequate. Suppose for a moment that a judge acquired a criminal case and the Defendant demanded a jury trial and further that the judge disregarded the Defendant’s constitutional right to a jury trial. Next assume that the judge proceeded to find the Defendant guilty and had the Defendant incarcerated. Under the current “judicial immunity” doctrine, the judge could not be sued for such an outrageous and fundamental error. The defenders of the status quo would say that such an outcome is not possible because the Defendant need only file a petition for mandamus to force the judge to impanel a jury. The weakness of this argument is that since appellate judges have absolute immunity as well, an appellate panel determined to uphold a colleague judge could simply use an unpublished opinion and simply deny the petition on some contrived ground or state no reason for denial at all, See Case No. 01-15754, Order Denying Mandamus (“The petition for writ of mandamus and petition for writ of prohibition” is DENIED.'”). The Defendant’s only remedy would be to sit in jail await an appeal for some time unspecified.

Lost of Judicial Immunity

“But when a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes or case law expressly depriving him of jurisdiction, judicial immunity is lost.” Rankin v. Howard, 633 F.2d 844, ¶22 (1980), cert den. Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326. 28 U.S.C. § 455 generally describes situations in which a federal judge must recuse or disqualify himself.

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

Consequently, if a federal Judge acts in violation of 28 U.S.C. § 455 then he or she would not have absolute immunity.  On September 20, 2001, when Judge Graham started his cavalcade of vindictive and lawless documented above, Judge Graham was without jurisdiction of the matter because he should have recused,  On appeal –Eleventh Circuit Case No. 01-13664: The Appeal From Hell-the simply declined to review the issue of whether Judge Graham should have disqualified or not.  Judge Graham is excoriated on appeal and the Eleventh Circuit’s only discussion of the issue in the unpublished opinion is limited entirely to: “Mason also raises issues that relate to non-sanction matters, e.g., …his motions to disqualify the district court and magistrate judges…”  See Unpublished Opinion, Case No.  01-13664.

For Every Wrong

There is a maxim that for every wrong there is a remedy, Holland v. Mayes, 19 So.2d 709, 711 (Fla. 1944). This concept is at the very core of American constitutional government. See Marbury v. Madison, 5 U.S. 137, 163, 2 L. Ed. 60 (1803) (“The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right”). There is no doubt that Judge Graham has inflicted grievous harm on Marcellus Mason. As stated above, the Eleventh Circuit has denied Mason appellate review. Lastly, and even more galling and outrageous is that Judge J.L. Edmondson, Chief Judge, Eleventh Circuit, U.S. Court of appeal does not consider Judge’s Graham’s unlawful behavior punishable under the Judicial Misconduct and Disability Act, 28 U.S.C. §351, et.seq. See http://mmason.freeshell.org/372c/index.html. Appellate review, Judicial Misconduct Complaints, and lawsuits are methods that can be used to discipline a rogue judge like U.S. Dist. Judge Donald L. Graham, but the Eleventh Circuit has mastered the art evading these methods. For documented proof of this allegation. see mmason.freeshell.org/methods.htm.

2 Responses to “U.S. Dist. Judge Donald L. Graham: A Test Case For Abrogating Or Modifying Absolute Immunity”

  1. William M. Windsor Says:

    Judicial Corruption in Atlanta, Georgia

    If you can help spread my story, I would certainly appreciate it. See http://www.lawlessamerica.com/

    I have a link on my website to you — http://www.lawlessamerica.com/index.php/resources/links

    Thank you.

  2. Ateya Swilam Says:

    I agree, brilliant article I had to file my petition by myself because of lack of money, in the 11 th circuit court. My intial brief was full of mistakes, legal ones. so the decision was partly dismissal and partly denial. Then I filed for rehearing , and I fixed all the problems in the initial brief, the court denied rehearing in less than one line sentence, no explanation whatsoever.the same judges who made the decision based on my intial brief denied the reharing. Rehearing in such a case when an individual has to represnt himself, he is expected to make mistakes, rehearing give the counrt a chane to make the right decision. My case is an immigration one, I have been in the USA more than 30 years, no criminal record, and I filed about 6 motions to reopen my case based on the ground that I obtained the waiver,the presiding judge stated that I could repen the case once I get the waiver,the BIA kept denying no matter what! then I had to file with the elevinth c c, cost me over $600, and another wasted time! the court even denied me waiving the fee although my total income is far below the poverty level, less than $7000 a year although I have MSEE, and BSEE! the bottom line is the court system, judges have kept me in the illigal status until today for what? missing the deadline for circumstances far beyond my control!

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