Appeals court upholds suit against prosecutors over jailhouse informants

Times Staff Writer

A federal appeals court ruled Wednesday that prosecutors can be sued over allegations that they failed to develop policies for the use of jailhouse informants in criminal cases.

The ruling came in a civil damages case filed by Thomas L. Goldstein, who spent 24 years in prison for a wrongful murder conviction based largely on the testimony of jailhouse informant Edward F. Fink.

Goldstein was convicted in the 1979 shotgun slaying of John McGinest in Long Beach. Fink testified that Goldstein confessed to the murder while they were in the Long Beach City Jail.

Goldstein maintained his innocence and more than two decades later, a federal judge overturned the conviction because of Fink’s credibility problems as well as the prosecutors’ failure to tell Goldstein’s attorney that they had made a deal to go easy on Fink in a separate criminal case.


After he was freed in 2004, Goldstein sued several Long Beach police officers, Los Angeles County, former Los Angeles County Dist. Atty. John K. Van de Kamp and his chief assistant, Curt Livesay, contending that his federal civil rights had been violated.

In particular, Goldstein alleged that Van de Kamp and Livesay had failed to develop policies and procedures, and failed to adequately train and supervise their subordinates, to fulfill their constitutional obligation of ensuring that information regarding jailhouse informants was shared among prosecutors.

In its 3-0 decision, the U.S. 9th Circuit Court of Appeals in San Francisco upheld a district court ruling and rejected Van de Kamp and Livesay’s contention that they were entitled to absolute immunity.

The decision marked the first time that the 9th Circuit has considered this issue, and the U.S. Supreme Court has never ruled on the precise question. Because of the potential ramifications for prosecutors, Loyola Law School professor Laurie L. Levenson said she thought the case might go to the Supreme Court.

“I’m really happy with the decision,” Goldstein said by telephone. “Jailhouse informants have been used by prosecutors to put a lot of innocent people in prison.... The ruling by this court is the first step toward making district attorneys accountable for their actions.”

The failure of the district attorney’s office to formulate a policy about jailhouse informants led to “the wholesale deprivation of constitutional rights” of defendants whose cases involved the use of testimony by such informants, said David McLane, one of Goldstein’s attorneys.

A 1990 grand jury investigation documented prosecutors’ widespread abuse of false testimony by jailhouse informants in Los Angeles County during the 1970s and ‘80s. By the time of Goldstein’s trial, Fink already had three felony convictions. Evidence unearthed after the trial revealed that a number of people in law enforcement had doubts about Fink’s credibility.

On Wednesday, Los Angeles attorney Steven Renick, who is representing Van de Kamp and Livesay, said he was disappointed with the decision and said county officials are “actively considering” asking the 9th Circuit to rehear the case with a larger panel of judges or asking the Supreme Court to review it. Livesay, who retired from the prosecutor’s office in 2005, said he had not seen the ruling and could not comment.


Van de Kamp said that neither he nor Livesay “had any knowledge of this case or any hand in it” at the time it was prosecuted. The former district attorney said he only learned about the case after Goldstein’s conviction had been struck down.

Ironically, Van de Kamp heads the California Commission on the Fair Administration of Justice, which has urged the state Legislature to limit the use of testimony by jailhouse informants in criminal trials. Heeding that recommendation, state Sen. Gloria Romero (D-Los Angeles) introduced a bill barring convictions based on the testimony of an informant who is in custody unless the account is corroborated by independent evidence.

Van de Kamp, who was the L.A. County district attorney from 1975 to 1983 and then California’s attorney general for eight years, said he thought elected district attorneys would be very concerned about the ruling because it could expose them to liability in a host of situations.

Los Angeles County Dist. Atty. Steve Cooley echoed that concern: “The 9th Circuit’s decision effectively strips away a long-established protection for public prosecutors.”


In Wednesday’s ruling, Judge Thelton Henderson noted that under Supreme Court decisions, prosecutors are absolutely immune for decisions to initiate a particular prosecution or even for presenting testimony they know is false. However, he said, prosecutors do not have absolute immunity for other actions, such as advising police officers during the investigative phase of a case or making public statements regarding criminal proceedings.

The key legal test is whether the conduct at issue is “intimately associated with the judicial phase of the criminal process,” Henderson wrote. Failure to develop a policy about jailhouse informants does not meet that test, he said.

Levenson said the way the law of prosecutorial immunity has evolved led to an ironic result in this case. If Van de Kamp and Livesay “had behaved reprehensibly and intentionally hid evidence ... they could not be sued,” because that would have been a “prosecutorial act,” Levenson said. “But if they were just bad administrators they can be sued.”