New Charges Keep Inmate Behind Bars

Times Staff Writers

After 24 years in prison for a murder he may not have committed, Thomas Lee Goldstein won an order from a state court judge Monday freeing him because "there's at least the appearance ... of impropriety" in prosecutors' use of an unreliable jailhouse informant to convict him.

But within hours, the Los Angeles County district attorney's office filed new charges against Goldstein and announced that it planned to try him again for the murder of John McGinest, who was killed by a shotgun on a street in Long Beach in November 1979.

"I am very confident we have the right guy," Deputy Dist. Atty. Patrick Connolly said.

Two floors above the Long Beach courtroom where Superior Court Judge Arthur Jean had dismissed the case against Goldstein in the morning, Judge Bradford Andrews arraigned him on the new charges in the afternoon. Dressed in jail blues, Goldstein, who turned 55 over the weekend, never left custody between the hearings.

Connolly asked Andrews to hold Goldstein without bail, but the judge set bail at $1 million. Goldstein said little from the jail-like holding area of the courtroom. Andrews scheduled a preliminary hearing for Feb. 18.

Dale M. Rubin, Goldstein's current lawyer, said he was "very frustrated" by the district attorney's action. "I guess it's really difficult for any prosecutor" to acknowledge errors were made and "to say, 'Gee we had 25 years of this guy's life. That's enough.' " Rubin said.

"Budgets are tight. They are throwing good money after bad to retry him, paying for police officers' time, district attorneys' time, a court-appointed defense lawyer and tying up a courtroom," he added.

Dist. Atty. Steve Cooley declined comment through his spokeswoman Sandi Gibbons. His office issued a statement shortly after the original charges were dismissed saying that authorities "feel the prosecution case remains strong and viable against Goldstein, even though nearly a quarter of a century has elapsed since the crime."

Connolly said in court that he planned to call "live witnesses" as well as introduce "transcript testimony" from Goldstein's original trial during the retrial.

Judge Jean dismissed the original case against Goldstein, citing lack of evidence and a California law allowing charges to be dismissed "in furtherance of justice."

Jean, a former deputy district attorney in Long Beach, said he was throwing the case out because of its "cancerous nature" and because he concluded that the case against "Mr. Goldstein was prejudiced" at his original court proceedings "to such a degree that justice requires a new preliminary hearing."

In his ruling, the judge cited decisions by federal judges who had reviewed the case. Five federal judges in the last 14 months have agreed that prosecutors denied Goldstein's right to a fair trial when he faced the murder charge in 1980. He was sentenced to 27 years to life for the killing.

The federal-court reviews of the case led the U.S. 9th Circuit Court of Appeals on Dec. 4 to order Goldstein released. The appellate court said prosecutors had violated Goldstein's rights by concealing the fact that they had struck a deal with Edward F. Fink, a jailhouse informant who was a key witness against Goldstein. Under the deal, which was never revealed to defense lawyers in the case, Fink received a lighter sentence on a theft charge in return for his testimony.

A second witness, Loran B. Campbell, had been improperly coached to identify Goldstein as the killer, the 9th Circuit judges found. Campbell later recanted his testimony.

On Monday, Judge Jean said he accepted the findings of the federal judges. But Jean said he was ruling "without prejudice," which permitted the district attorney's office to refile the case.

Prosecutors could face difficulty using Fink's testimony in the retrial because of many statements by judges and law enforcement officials questioning his truthfulness. Fink, who died in 1994, was arrested 35 times. He testified in 10 cases -- including seven murders -- each time saying that the defendant had confessed to him while sharing a jail cell.

In 1995, U.S. District Judge Richard Gadbois, while reviewing a death penalty case in which Fink had testified, said he had "extreme doubts as to the veracity of Fink's testimony."

Court files in another case show that a state prison counselor described Fink as "a con man who tends to handle the facts as if they were elastic."

During the hearing Monday, Rubin said Fink had given perjured testimony in Goldstein's trial.

Connolly disagreed that any witness in the trial had lied. And he said that if the judge removed "the cancerous part of the case," there was still sufficient evidence of Goldstein's guilt because of Campbell's testimony. Campbell had provided a strong identification of Goldstein at the trial, Connolly said.

In a sworn statement in 2000 and then at a federal court hearing in 2002, Campbell, who is now dead, testified that he had never been sure of his identification. He was "a little overanxious" to help police, Campbell said at the hearing. Of six witnesses who said they had seen the killing, Campbell was the only one who identified Goldstein; four testified that the killer was "black or Mexican."

In his detailed 2002 report on the case, federal Magistrate Robert N. Block said the testimony of both Fink and Campbell had been critical to securing Goldstein's conviction.

"Considered collectively," the information that prosecutors withheld from the defense about Fink's deal and Campbell's doubts about his identification "unquestionably undermines confidence in the verdict," Block wrote.

Goldstein, a former Marine who lived near the scene of the murder and was a student at Long Beach City College at the time, has maintained his innocence. There was no physical evidence that tied him to the crime scene or the murder victim. Prosecutors said Goldstein had killed McGinest because McGinest owed him money, but no proof of that was presented.

Deputy Federal Public Defender Sean K. Kennedy, who represented Goldstein in the federal court proceedings, said he was shocked that the district attorney had refiled the case. "If they have a strong case against him, they seem unable or unwilling to share what it is, Kennedy said. "I believe the case today is the same as it always was -- perjured testimony."

For The Record Los Angeles Times Wednesday February 04, 2004 Home Edition Main News Part A Page 2 National Desk 2 inches; 89 words Type of Material: Correction Goldstein case -- An article in Tuesday's California section about the case of Thomas Lee Goldstein that quoted the prosecutor describing the types of evidence he plans to use in retrying Goldstein on murder charges incorrectly stated that the remarks were delivered in court. They were made outside court. Also, the prosecutor did not ask for Goldstein to be held without bail; he noted that Goldstein had been held without bail after his first arrest in 1979 but said under current law, bail should be set at $1 million.
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