L.A. case could dent prosecutor immunity

Times Staff Writer

Prosecutors have long been shielded from lawsuits brought by people who were wrongly convicted. Even if a defendant is later shown to be entirely innocent, the prosecutor who brought the charges cannot be held liable for the mistake.

The Supreme Court has ruled that “absolute immunity” is needed so that prosecutors -- and judges -- can do their jobs without fear of legal retaliation.

But a California case that the high court is considering taking could open a back door for such lawsuits. Prosecutors in Los Angeles are urging the court to block a suit from a man who was wrongly convicted of murder because, they say, it will allow “a potential flood” of similar claims across the nation.

Last year, the U.S. 9th Circuit Court of Appeals set off alarms among prosecutors in the West when it ruled that supervising prosecutors could be sued for alleged management failures that led to a wrongful conviction. Its ruling cleared the way for Thomas L. Goldstein to sue former Los Angeles Dist. Atty. John K. Van de Kamp.


The suit does not allege that Van de Kamp, the county’s chief prosecutor from 1975 to 1983, played a direct role in Goldstein’s wrongful conviction for a shotgun murder in Long Beach in 1979. Indeed, Van de Kamp said he was unaware of the details of this case until decades later when the conviction was reversed.

Rather, the suit alleges that Van de Kamp and his top deputy, Curt Livesay, failed to set up a system to monitor the use of testimony from jail informants.

The Los Angeles County district attorney’s office, the nation’s largest prosecution office, once made regular use of jail informants, but at the time it had no system for sharing information among prosecutors countywide about which informants were reliable and what they had been promised.

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.

Regardless, the immunity rule should be preserved as an important judicial safeguard, Levenson said. “We don’t want [prosecutors] looking over their shoulders. In order to be independent and to make tough calls, they can’t be worrying about whether they will be sued.”

Prosecutors are not immune from all sanctions. The state bar can discipline them for violating the code of conduct. And outside the courtroom, they open themselves to lawsuits if, for example, they make inflammatory statements to the press.

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.

Lawyers for Goldstein say that ruling in Giglio vs. United States put prosecutors on notice of their responsibilities.

“An informant has a huge incentive to make up a story, to say they heard the defendant confess. That’s what was going on here,” said David McLane, a lawyer in Pasadena. “It seemed like every murder case in Los Angeles in the 1970s had testimony from a jailhouse informant.”

“As to whether the district attorney had knowledge of what happened, that’s not the issue in this case,” he added.

Van de Kamp sees a note of irony in the situation. He is the chair of the California Commission on the Fair Administration of Justice, a group set up to prevent wrongful convictions. It has pressed for a law that would require corroboration before testimony from a jailhouse informant could be used in a criminal trial.

The Legislature approved such a bill last year, but it in October Gov. Arnold Schwarzenegger vetoed it. He called the measure “unnecessary” because this “perceived problem . . . arises in very few criminal cases.”