Lawsuit challenges prosecutors'
Supreme Court has been asked to rule where responsibility lies in instances of
By David G. Savage, Los Angeles Times Staff Writer
WASHINGTON -- Prosecutors have long been shielded from
lawsuits brought by people who were wrongly convicted. Even if a defendant is
later shown to be entirely innocent, the prosecutor who brought the charges
cannot be held liable for the mistake.
The Supreme Court has ruled that
"absolute immunity" is needed so that prosecutors -- and judges -- can do their
jobs without fear of legal retaliation.
But a California case that the high court is considering
taking could open a back door for such lawsuits. Prosecutors in Los Angeles are
urging the court to block a suit from a man who was wrongly convicted of murder
because, they say, it will allow "a potential flood" of similar claims across
Last year, the U.S. 9th Circuit Court of Appeals set off
alarms among prosecutors in the West when it ruled that supervising prosecutors
could be sued for alleged management failures that led to a wrongful conviction.
Its ruling cleared the way for Thomas L. Goldstein to sue former Los Angeles
Dist. Atty. John K. Van de Kamp.
The suit does not allege that Van de
Kamp, the county's chief prosecutor from 1975 to 1983, played a direct role in
Goldstein's wrongful conviction for a shotgun murder in Long Beach in 1979.
Indeed, Van de Kamp said he was unaware of the details of this case until
decades later when the conviction was reversed.
Rather, the suit alleges
that Van de Kamp and his top deputy, Curt Livesay, failed to set up a system to
monitor the use of testimony from jail informants.
The Los Angeles County district attorney's office, the
nation's largest prosecution office, once made regular use of jail informants,
but at the time it had no system for sharing information among prosecutors
countywide about which informants were reliable and what they had been
Goldstein was ordered released after 24 years in prison after
the sole eyewitness recanted and doubts emerged about a supposed confession by
Goldstein to an informant. Years after his conviction, Goldstein learned that
his jailhouse accuser -- a three-time felon -- had lied in court when he denied
having received promises of special treatment from another county prosecutor in
exchange for his testimony.
"This suit is 29 years in the making, and
it's about accountability," said Goldstein. "[It] will put every prosecutor's
office on notice that they need a system for sharing information. And by doing
so, it will result in fewer wrongful convictions."
In 1982, Van de Kamp
was elected California attorney general. He served two terms. He ran
unsuccessfully for governor in 1990 and has been a lawyer in private practice in
Los Angeles since.
"I had never been sued in all my years in public
office. But if this were the law, defense lawyers and civil counsel would be
suing all the time. You can always allege a 'failure to train' or a management
failure," Van de Kamp said.
Though Van de Kamp is personally named in the suit, legal
experts said Los Angeles County would pay any judgment if Goldstein won. Public
officials sued in the course of duties are indemnified by their
"John is not paying a dime," said Laurie Levenson, a professor
at Loyola Law School in Los Angeles.
Regardless, the immunity rule should
be preserved as an important judicial safeguard, Levenson said. "We don't want
[prosecutors] looking over their shoulders. In order to be independent and to
make tough calls, they can't be worrying about whether they will be
Prosecutors are not immune from all sanctions. The state bar can
discipline them for violating the code of conduct. And outside the courtroom,
they open themselves to lawsuits if, for example, they make inflammatory
statements to the press.
In December, Los Angeles County Dist. Atty.
Steve Cooley, the California District Attorneys Assn. and the National District
Attorneys Assn. joined lawyers for Van de Kamp in petitioning the Supreme Court
to review the 9th Circuit's ruling. They said the appellate ruling was a
dramatic shift in the law. Complaints against prosecutors could easily become
management-related suits against supervisors, they argued.
Thorpe of the California D.A. group said the ruling created a perverse situation
in which absolute immunity would shield a trial prosecutor who committed an
"intentional violation of civil rights" yet a supervisor could be held
personally liable for "unintentional violations" related to policies.
justices may announce as soon as Monday whether they will hear Van de Kamp vs.
Goldstein. If the court takes up the case, it will be argued in the
If the appeal petition is rejected, leaving the 9th Circuit's
decision in place, lawyers for Goldstein plan to question Van de Kamp and
Livesay, also named in the suit, under oath. The lawyers want to determine what
steps, if any, were taken in the 1970s to protect defendants from false
testimony from jailhouse informants.
In 1972, the Supreme Court
overturned a man's conviction in a forgery case because an unwitting prosecutor
had told the jury that a business partner had not been promised anything in
exchange for his testimony. In fact, an assistant prosecutor had promised the
business partner that he would escape prosecution if he testified for the
government. In its ruling, the high court said "the prosecution's office is an
entity," and it had a duty to disclose the full truth about its dealings with
Lawyers for Goldstein say that ruling in Giglio vs. United
States put prosecutors on notice of their responsibilities.
has a huge incentive to make up a story, to say they heard the defendant
confess. That's what was going on here," said David McLane, a lawyer in
Pasadena. "It seemed like every murder case in Los Angeles in the 1970s had
testimony from a jailhouse informant."
"As to whether the district
attorney had knowledge of what happened, that's not the issue in this case," he
Van de Kamp sees a note of irony in the situation. He is the chair
of the California Commission on the Fair Administration of Justice, a group set
up to prevent wrongful convictions. It has pressed for a law that would require
corroboration before testimony from a jailhouse informant could be used in a
The Legislature approved such a bill last year, but it in
October Gov. Arnold Schwarzenegger vetoed it. He called the measure
"unnecessary" because this "perceived problem . . . arises in very few criminal
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