What happens to a justice system when it grants legal immunity to those in power for their malicious acts toward the innocent and vulnerable? A 6-year-old boy is charged with first-degree sexual assault for playing doctor with friends; the Class B felony can be punished by up to 60 years imprisonment.

PLAYING DOCTOR BECOMES A FELONY

Last fall, a six-year-old Wisconsin boy played doctor with another boy and girl, both of whom were 5. Depending on whose story is credited, some touching of the girl’s bare buttocks occurred and/or a finger was inserted into the girl’s anus. (The girl denied the penetration to police.)

On November 15, 2011, the parents of the boy filed a federal lawsuit against Wisconsin’s Grant County district attorney, a social worker and a now-retired Sheriff’s Office investigator. The reason? The boy, who is now merely known as “D”, was charged with first-degree sexual assault. He has been so vigorously pursued by Grant County officials that D’s attorney Christopher Cooper states, “I think his life has been ruined, and I think it’s been ruined by reckless conduct by the defendants without any regard for the little boy and his future.”

At 7 years old, D cannot currently be prosecuted or even named in court records. But the parents accuse county officials of using threats to force them to sign a Consent decree (a blanket permission to deal with their son). They claim officials harangued them and D to admit his guilt and to have him receive social and protective services. If a confession was not produced, then the parents were told that D could be listed as a sex offender when he turned 18. That would label him a second-class citizen, both legally and in life’s important opportunities such as career, education, and residency.

If accurate, the parents’ lawsuit reveals a tale of arrogant power, political favors, malice, and utter disregard for a child’s welfare. It names as defendants District Attorney Lisa Riniker, social worker Jan Moravits and retired Grant County Sgt. James Kopp. It aims at discrediting the varying levels of immunity with which the three officials allegedly brutalized a 6-year-old child.

The suit is being brought under 42 U.S.C. Section 1983. This means it is a civil action within the federal court system to remedy a deprivation of rights. Under the Code, any person who deprives an American citizen of the rights or privileges secured by the Constitution and laws can be subjected to legal proceedings for redress. The parents cite violations of their 1st, 4th, 5th, 6th and 14th Amendment rights as well as those of their son. Because the Code explicitly excludes “judicial officers for an act or omission taken in such officers judicial capacity”[/link], the parents are trying to prove that all defendants acted outside their authority. If so, then none of them can legally claim the blanket immunity that none of them deserve morally.

PARTICULARS OF THE LAWSUIT [.pdf]

The case under scrutiny seems to be rooted, first and foremost, in political favors. The two children who played doctor with D are alleged to be the son and daughter of a prominent Grant County political figure. The other boy was not charged even though he admitted playing doctor as well. Instead D alone was investigated by the defendant social worker Moravits whose supervisor is the sister-in-law of the political figure’s wife. The supervisor considers herself to be an aunt to the two children. Moravits’ report called only for D’s legal prosecution and vigorously so. If the lawsuit’s claims are true, it looks like political favors were translated into selective prosecution on behalf of a powerful family.

In addition, the lawsuit accuses Moravits and the Sheriff Sgt. of conducting investigations that were overwhelmingly biased in favor of the political figure. [.pdf] One alleged bias was the constant demand by officials that D confess and that his parents press him to do so. The suit claims that Moravits implied he…parent have been witness tampering by coaching the boy on what to say. They were called “Unfit (fit parents would cause a child to admit guilt)” and threatened with the removal of the children from their home. In response, the parents refused to have D interviewed by Moravits without legal representation present. Thus, Grant County officials are charged with violating the family’s First Amendment freedom of speech which guarantees that the right to declare their innocence, to maintain silence, and to speak with a lawyer.

Apparently the family’s insistence on a lawyer only infuriated officials and convinced them of D’s guilt. Harassment substantially increased. For example, an additional charge was suddenly laid but now seems to have been dropped. Sgt. Kopp went to D’s school to get the boy’s school records without parental consent or knowledge. And, when D.A. Riniker notified the family of D’s hearing date, she did so by addressing the primary correspondence to him personally even though he is too young to understand legal language. Riniker informed the 6 year old “If you fail to appear as summoned, you may be held in contempt of court, or a capias may be issued for your arrest.” [Emphasis added.] In the court documents, Riniker refers to the boy by his last name as Mr.—-”

Through page after page, the claims of the lawsuit unfold in a similar manner. The parents’ ultimate demand: $12 million in damages or actual, general, special and compensatory damages and punitive damages in the amount of $3 million, plus the costs of the action, including attorney’s fees, etc. They also seek an injunction against further harassment.

The success of the lawsuit depends upon its ability to strip the defendants of the varying degrees of legal immunity that they enjoy.

THE STICKY WICKET OF IMMUNITY

D.A. Riniker has the strongest immunity by far. The District Attorney’s office is shielded by an ‘absolute prosecutorial immunity’ this legal doctrine exempts virtually every bad act of a prosecuting attorney from being redressed by civil lawsuits or criminal charges.

The Supreme Court case Imbler v. Pachtman (1976) is often cited in discussion of prosecutorial misconduct. Civil libertarian Radley Balko explained the significance, “In Imbler, the Supreme Court determined that a prosecutor who knowingly uses false testimony and withholds exculpatory evidence is immune from damages, even in cases where his misdeeds result in a wrongful conviction. The Court determined that subjecting prosecutors to the possibility of such suits would affect their judgment in determining what cases to bring.”

Imber also distinguished between “those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate” [that is, a prosecutor]. It is only as a prosecutor that a D.A. has absolute immunity. Otherwise, his immunity is qualified; he is not automatically protected against legal action for misconduct that he should have known was a violation of law.

In short, Riniker’s immunity may hinge upon the role she was playing at each point when she acted. For example, if she directed that the second boy be excluded from scrutiny, then she may have done so in an investigative role rather than a prosecutorial one. Also, if she made false statements to the press or to the parents during the investigative phase, this too may be subject to qualified immunity.

Those involved in other areas of law enforcement, such as social workers and Sheriffs, generally protected by a ‘qualified immunity’ that, in practical terms, has been broadly defined as exempting anyone from legal consequences if they ‘acted according to departmental policy’. Thus, in many newspaper accounts of police brutality or harassment, the sole of statement of a police representative is usually he officer was acting within police policy or procedure. This ‘immunity’ is bolstered in many ways; for example, it is difficult to impossible to obtain police records of internal investigations into officer wrongdoing.

Nevertheless, D’s parents are unlikely to back down. How can they? Their son’s life is at stake. The boy has been diagnosed with stress disorders, including “fear of going to jail, as well as anxiety, depression, sleepless nights, vomiting, crying and missed school time.” He faces the possible lifetime stigma of ‘sex offender’.

Immunity will be a difficult privilege to surmount. But D’s parents have made a smart move. They have applied for a jury trial that is, for a hearing before a panel of average people, most of whom will presumably have children. The jury is not likely to be impressed by a powerful D.A. who brings a Class B felony charge against a kindergartener; they are likely to wonder about her motives and why the second boy was not investigated. Moreover, a federal court jury will be beyond the reach of Grant County politics. If the parents do prevail, however, the case will almost certainly be appealed.

Meanwhile, the first-degree sexual assault case against D is pending. Under attack, the D.A. is not likely to let that negotiating chip fall from her hand. Indeed, given that she has just obtained a gag order against the parents to prevent them from speaking of the case, Riniker seems likely to tighten her grasp.

CONCLUSION

Immunity was never meant to facilitate selective prosecution, to destroy a 6 year old, to shield corrupt investigations, or violate civil rights. But it has become a license to abuse power.

If prosecutorial (and other law enforcement) misconduct were rare, then the situation might not be so disturbing. In an essay entitled “Reconstructing Absolute Prosecutorial Immunity” (Brigham Young University Law Review, 2005), legal scholar Margaret Z. Johns observed, “a 2003 study presents alarming evidence of the frequency of prosecutorial misconduct resulting in the wrongful conviction of hundreds of innocent people. This conclusion is reinforced with the ongoing investigation by the Innocence Project which reported that, as of January 2005, 154 people who served time in prison for crimes they did not commit have been exonerated by DNA evidence. In many of these cases, prosecutorial misconduct contributed to the wrongful convictions… [O]ne can no longer dismiss the problem of prosecutorial misconduct as infrequent nor pretend that sufficient safeguards exist in the system to protect the innocent from wrongful convictions.”