Challenging Prosecutor Immunity

Where does the responsibility lie for wrongful convictions? The supreme court may decide how to answer that question in a case the court is being asked to decide right now.

Prosecutors have traditionally been shielded from facing charges for wrongful prosecutions, even in instances when they behaved egregiously, and defendants were later found to be innocent of all charges.

In the past, the high court has ruled that prosecutors must have "absolute immunity" in order to do their jobs without fear of legal reprisal, but last year a ruling from the 9th Circuit Court of Appeals set of something of a panic when they ruled that supervising prosecutors could be sued for management failures that lead to wrongful convictions. That ruling cleared the way for Thomas L. Goldstein to sue former Los Angeles D. A. John K. Van de Kamp.

Goldstein's suit does not allege that Van de Kamp was directly involved in his wrongful conviction for a 1979 shotgun murder; rather it charges that he and a top deputy failed to establish a set of protocols to monitor and vet testimony from jailhouse informants, and false testimony from one of those informants led to Mr. Goldstein's wrongful conviction and incarceration. In the past the LA prosecutors office, the largest in the country, relied heavily on jailhouse informants, but there was no coordination of efforts or communication between various prosecutors, what promises had been made to informants or even what informers were reliable and what ones were scamming for their own benefit.

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 agencies.

"John is not paying a dime," said Laurie Levenson, a professor at Loyola Law School in Los Angeles.

Prosecutors are not totally immune from sanction for misconduct. State bar associations often levy punishments for violating codes of conduct, and prosecutors can be held liable for "inflammatory" statements made to the press during prosecutions.

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.

W. Scott 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.

The 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 fall.

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 informants.

So where should the line be? Egregious misconduct happens, and people are robbed of years - sometimes decades - of their lives. I am a citizen of this country, and I want my government to enforce societies laws and punish criminals and do their jobs to protect us.

But I don't think a prosecutor who suppresses evidence of innocence and goes for a conviction, any conviction, should skate away free of consequence, either.

By the way, the irony of this situation is not lost on Van de Kamp - he is the chair of the California Commission on the Fair Administration of Justice, a group established to prevent wrongful convictions. CCFAJ has pressed for a law that would require corroboration before testimony from a jailhouse informant could be used in a criminal trial. The California state lege approved such a measure last year, but Governor Schwartzenegger vetoed it - calling it "unnecessary" and a solution in search of a "perceived problem that arises in very few criminal cases."