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High Court Rejects Suit in Failure-to-Warn Case : Crime: Former D.A. was killed in 1986 by a man he prosecuted in 1955. His family claimed officials were negligent for not informing him of the paroled convict’s threats.

TIMES STAFF WRITER

The state Supreme Court, in an unusual “victims’ rights” case, refused Wednesday to allow a lawsuit against authorities for allegedly breaking a promise to warn a former prosecutor who was killed by a man he had sent to prison decades ago.

In a brief order, the justices let stand a trial court’s dismissal of a wrongful death suit brought by the family of William O. Weissich, the Marin County district attorney from 1953 to 1960.

Weissich, 66, was gunned down in his San Rafael law office in November, 1986, by Malcolm Roland Schlette, 72, whom he had successfully prosecuted for arson in 1955. After the surprise attack, Schlette committed suicide by taking cyanide.

Weissich’s survivors sued local and state officials, charging officers had negligently failed to keep a promise to warn the former prosecutor of any menacing behavior by Schlette.

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The state high court recognized a basis for “failure-to-warn” suits in a landmark 1976 ruling when it held that a psychotherapist had a legal duty to warn the intended victim of a patient’s threats. Since then, however, the court has placed strict limits on such suits. In its lawsuit, the Weissich family recalled that when Schlette was sentenced in 1955, he had threatened the lives of the prosecutor, police, the judge and jurors. After his release on parole in 1966, Schlette was sent back to prison when authorities discovered he was carrying a “death list” including Weissich among his intended victims.

Weissich was warned at that time and again in 1975, when Schlette was again released from prison after completing his term. The suit said officials pledged to continue to alert Weissich of “any threatening behavior” by Schlette.

But, according to the family, this promise was not carried out. Weissich, by then in private practice, was not informed when authorities were told in 1976 that Schlette was stockpiling arms; or when he was convicted and placed on probation in 1983 for illegal gun possession; or when officials were told in May, 1986, he once again was acquiring arms.

In November, 1988, the government officials named in the suit obtained a dismissal in Marin County Superior Court. Last October a state Court of Appeal in San Francisco upheld the ruling.

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The appeals panel, in an opinion by Appellate Justice Gary E. Strankman, said that while authorities may have initially assumed a protective role in the case, they were not legally bound to that role “in perpetuity.”

“The duty of a good Samaritan is of limited duration,” Strankman wrote in an opinion joined by Appellate Justices Clinton W. White and Robert W. Merrill. The court also found it was not “reasonably foreseeable” that a convicted felon would wait 30 years to carry out a threat.

The panel said that allowing such lawsuits could impose an impractical “open-ended duty” on police departments to warn all potential victims of vengeful criminals. In their appeal to the state Supreme Court, attorneys for the family contended that there was a legal duty to warn in this case where there was a “specific, identifiable” victim who had been relying on a promise he would be alerted of any new threat.

Alvin H. Goldstein of San Francisco, an attorney for the family, said, “It is disheartening that the courts are more sensitive to the imagined burden on law enforcement of a timely warning than they are to the potential life-saving value of a warning to a known intended victim of a homicidal maniac.”

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