Defense Attacks Questioning of Inmate

In the latest twist in an already serpentine case, lawyers quarreled Tuesday over the ethics of a prosecutor’s effort to question Thomas Lee Goldstein, whose murder conviction was dismissed Monday because of prosecutorial misconduct 24 years ago.

Goldstein was convicted in 1980 of the 1979 murder of John McGinest in Long Beach. His conviction was dismissed after five federal judges reviewed his case and found serious problems with the testimony of two key witnesses -- one a jailhouse informant who testified in 10 cases, including Goldstein’s, that defendants had confessed to him while sharing his jail cell.

In December, the U.S. 9th Circuit Court of Appeals had ordered Goldstein released after finding that the informant, Edward F. Fink, had a secret deal with prosecutors to get a lighter sentence in exchange for his testimony. Prosecutors violated Goldstein’s right to a fair trial by not disclosing that deal, the judges ruled. But state and county officials succeeded in keeping Goldstein in custody until Monday, when they announced that they would seek to retry him and filed new murder charges.

The latest dispute began with a letter from Goldstein’s current lawyer, Dale M. Rubin, to Los Angeles County Deputy Dist. Atty. Patrick Connolly. Rubin accused Connolly and a Long Beach police detective of speaking to Goldstein on Jan. 3 without notifying a defense attorney first. That, Rubin said, would be a violation of a state bar ethics rule that prohibits a prosecutor from contacting a defendant without the knowledge of the defendant’s lawyer, if there is one.

But Connolly’s supervisor, Allen Field, the lead deputy district attorney in Long Beach, insisted that the interview was proper and that he had consulted an ethics expert before authorizing it. Goldstein had initiated the meeting, he said, and while Goldstein had a lawyer in federal court, he had not yet been appointed a lawyer in state court, where the prosecutors practice.

Deputy Federal Public Defender Sean K. Kennedy, who was representing Goldstein in his effort to have his conviction overturned by the federal courts, had no standing in state court so prosecutors had no need to consult him, Field said.

“There was no attorney to call,” Field said. “It is not my job to find Mr. Goldstein a lawyer. It’s my role to defend the rights of the deceased in court.”

When prosecutors spoke to Goldstein, “they tried to read him his Miranda rights three or four times, and he kept cutting them off, saying, ‘I’m not going to talk about evidence, I want to know when I’m getting out of jail,’ ” Field said. The Miranda rights include the reminder that a defendant has a right to a lawyer.

Rubin, who will defend Goldstein when he is retried for the murder, scoffed.

“He’s ordered released ... by the 9th Circuit because of prosecutorial misconduct that violated his constitutional rights. [If] he’s not represented, then you go to a judge and say, ‘Get this guy a lawyer.’ If he is represented ... you know you can’t talk to him.”

All Goldstein knew at the time was that the federal court had ordered his “immediate” release, “and all he wants to know” from the prosecutor “is why he’s still in custody, and the only name he’s got is Pat Connolly on the court documents,” Rubin said, offering his explanation of why his client had called the prosecutors. “I am so outraged by this,” he added.

Ironically, the conversation yielded no new information about the November 1979 shotgun murder of McGinest, who was killed as he jogged near Pine Avenue in Long Beach. Rubin said, however, that “I’ll have no way of knowing independent of police exactly what my client said, only what the police considered important to note.”

Loyola Law School professor Laurie Levenson, a former federal prosecutor, said the failure to have an attorney present -- or at least an attempt to find one by calling the federal public defender or seeking permission from a judge -- left doubt about the “fairness” of the questioning even if it was not a violation of ethics rules.

“I’m not saying the prosecution did anything wrong, but it’s a sticky ethical issue, and it raises the question, anyway, of whether it was appropriate or fair,” she said.

Apart from the substance of what transpired, the dispute gave Goldstein’s defense an opportunity to raise an issue “before the court of public opinion” to establish that the prosecution of his client has continued to be unfair, Levenson said.

That’s “not an unexpected strategy,” she added.