Metropolitan News-Enterprise


Monday, July 23, 2001


Page 1


Lawyer May Sue Cooley for Prosecutorial Misconduct—Ninth Circuit


By KENNETH OFGANG, Staff Writer/Appellate Courts


District Attorney Steve Cooley isn’t absolutely immune from a suit by a criminal defense attorney whose conviction for obstruction of justice was thrown out on appeal, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The court reinstated most of a lawsuit brought by Leonard J. Milstein, who claims that Cooley and colleague Robert Foltz pursued a vendetta against him after he saved a client from the death penalty in a double-murder case. Cooley could take the case to the U.S. Supreme Court, his lawyer told the METNEWS

Milstein, a former Los Angeles deputy district attorney who now practices in San Luis Obispo, represented Brad Millward at his 1989 trial for two drug-related murders. The jury acquitted Millward of one count of murder, but deadlocked on a second count, and Millward later pled guilty to voluntary manslaughter and was sentenced to state prison.

But Cooley—then head deputy in the Antelope Valley, where Milstein’s client was prosecuted—and Foltz later charged that Millward and Milstein plotted to use several jailhouse informants to construct a false defense.

1995 Convictions

Milstein was convicted in 1995 of one count of conspiracy to obstruct justice; two counts of perjury; one count of offering false documentary evidence; one count of preparing false documents for evidence; and one count of bribery of a witness. The jury acquitted on two charges—solicitation to commit a crime and subornation of perjury.

Judge William McLaughlin sentenced him to three years in prison, but the Court of Appeal reversed in 1997, saying there was insufficient admissible evidence. The court cited the traditional rule requiring corroboration of an alleged co-conspirator’s testimony.

Milstein then sued the prosecutors in the U.S. District Court for the Central District of California.

He claimed that they violated his civil rights by encouraging one of his witnesses in the Milward case to give false testimony against him, initiated a criminal investigation by filing a report describing themselves as witnesses or crime victims, and then conducted the investigation themselves with the assistance of an unnamed district attorney investigator.

Cooley and Foltz also misled the grand jury into indicting him, instructed the investigator to file a criminal complaint after the grand jury indictment was dismissed, and appeared in court to oppose the reappointment of the defense lawyer who had won the dismissal.

Complaint Amended

Milstein amended his complaint shortly after it was filed in 1999. He claimed that Cooley had further violated his rights by making defamatory remarks to a reporter who had asked him for comment on the lawsuit.

The reporter quoted Cooley, who by then was a candidate for district attorney, as saying that Milstein was “still smarting from the fact that the system—in an effort to preserve the integrity of the criminal trial process—successfully exposed his alleged criminal misconduct.”

Milstein claimed that he was “framed” and that Cooley made his comments to the reporter without cause to believe that the charges were true, with the intent of destroying Milstein’s reputation, and to retaliate for his success on appeal and to bolster what was then considered an underdog campaign. 

Milstein also sued Cooley for defamation in state court, but the Court of Appeal for this district ruled in March that the alleged statement was protected by the First Amendment.

Milstein’s federal suit was dismissed by U.S. District Judge Dean D. Pregerson, who held that—as prosecutors—Cooley and Foltz had absolute immunity with respect to all of the allegations.

But Judge Procter Hug Jr. said the district judge had erred in applying the immunity to activities outside the scope of the prosecutorial function.

It isn’t the prosecutor’s job to fabricate evidence, file a false crime report, act “in the role of detective rather than advocate” by investigating crimes that haven’t been charged, or make comments to the media, Hug said. If a prosecutor undertakes these activities, the judge said, he does so outside the protection offered by absolute prosecutorial immunity, the judge explained.

The court agreed with the district judge, however, that asking for a grand jury indictment, opposing the appointment of particular counsel, and instructing an investigator with respect to the contents of a criminal complaint are within the role of prosecutor and thus covered by immunity.

Cooley’s office referred a request for comment to his attorney, Steven J. Renick of Manning & Marder Kass, Ellrod, Ramirez, who said a decision would likely be made this week as to whether to seek en banc review. A petition for certiorari to the U.S. Supreme Court is also a possibility, he said.

Renick said the case fell in a “gray area,” and that other circuits had taken a broader view of the immunity than Friday’s panel.

“I don’t think the Court of Appeals did a horrible thing, but we disagree,  obviously,” he said. He emphasized that no court has ruled on the truth of any of Milstein’s allegations.

Milstein’s attorney, San Simeon sole practitioner Wiley Ramey, said he was “very pleased” the court held that prosecutors can be held liable for what he characterized as “extreme” misconduct. His client, he said, was charged “out of a sense of revenge” because Cooley and Foltz couldn’t stand to lose the Millward case.

The case is Milstein v. Cooley, 99-56682.


Copyright 2001, Metropolitan News Company