Metropolitan News-Enterprise


Monday, June 7, 2004


Page 1


Ninth Circuit Revives San Diego Prosecutor’s Immunity Claim

District Judge Was Misled by ‘Misstatement’ in Supreme Court Opinion, Panel Says


By KENNETH OFGANG, Staff Writer/Appellate Courts


A federal district judge must reconsider an order denying summary judgment motions by a San Diego prosecutor and his former investigator, who are claiming  official immunity from a civil rights suit by six men who alleged they were falsely accused of murder, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The standard for ruling on summary judgment motions based on qualified immunity is the same as for other such motions, Judge William Fletcher explained—if the moving party presents evidence to support the immunity claim, the burden shifts to the plaintiffs to present sufficient contrary evidence to establish that there is a triable issue of material fact.

The case was sent back to U.S. District Judge Judith N. Keep of the Southern District of California. Keep, Fletcher said, was misled by a confusing comment in a U.S. Supreme Court opinion and erroneously believed that she was required to accept the allegations in the  complaint as true for purposes of the motions.

Long-Running Case

Friday’s ruling is the latest development in a case that has provoked comment in San Diego for years. The plaintiffs—Stacy Butler, Darryl Bradshaw, Clifton Cunningham, Edric Jordan, Kevin Standard, and Kyle  Winter—were all at one time accused of involvement in the 1988 murder of rookie San Diego police officer Jerry Hartless.

Hartless was shot while he and another officer were pursuing a suspect in Lincoln Park. Butler was tried for the murder in 1991, but the trial ended in a hung jury.

The other five were charged later, and all except Winters—who pled guilty to manslaughter and was sentenced to 11 years in prison—were tried with Butler in 1994. The prosecution’s theory was that Hartless was killed because he had stumbled into a secret gang meeting at which the defendants were conspiring to kill a member of a rival gang.

Jordan was acquitted, while the other four were convicted and sentenced to prison for indeterminate periods. The prosecutor, Keith Burt, was named Prosecutor of the Year by the California District Attorneys Association based on his work, and the following year he was named chief deputy district attorney.

The prosecution, however, lost its hard-earned convictions after the San Diego Union-Tribune reported in 1997 that its star witness, gang-member-turned-informant Darin Palmer, got unlimited free phone calls and was allowed to have sex with his wife and other women at various locations, including the District Attorney’s Office. Palmer’s wife was identified as the primary source for the story.

The five convicted defendants filed habeas corpus petitions, which were granted after the San Diego Superior Court judge who presided at the two trials, William Kennedy, found that prosecutors had granted undisclosed favors, including a favorable plea bargain in an unrelated case. Palmer was made “a temporary member of the prosecution unit in this case,” Kennedy said.

Conflict of Interest

The jurist also found that the District Attorney’s Office had a conflict of interest in continuing to prosecute the case once its integrity, and the adequacy of its previous internal investigation into the conduct of its own employees, was questioned. The Attorney General’s Office took over, and negotiated pleas in which the five defendants pled guilty to voluntary manslaughter and were sentenced to time served.

District Attorney Paul Pfingst subsequently concluded that investigator Edward Cervantes, described as the office’s primary contact with Palmer, had engaged in misconduct. He was fired.

Pfingst—who was defeated for re-election two years ago—defended Burt’s handling of the case, but stripped him of his chief deputy’s post and reassigned him to a civil service position in juvenile court based on “other allegations.”

All six of the suspects sued Burt, the District Attorney’s Office, Cervantes, the San Diego Police Department, and SDPD detective Jim Kelly. They alleged, among other things, that Cervantes told Palmer that he could be prosecuted for the Hartless killing because he owned the murder weapon; that Burt agreed that Palmer would receive time served on an armed robbery charged and would not be charged in the Hartless case if he testified the way Burt wanted; and that Cervantes initiated and Burt authorized the trysts at the District Attorney’s Office and other favors.

Allegations of Complaint

It was also alleged that Burt allowed Butler to lie to the jury by saying he was confined to a small cell with little contact with the outside world, and that Burt assisted Palmer in getting a potential third-strike narcotics charge dismissed in 1995 after the defendant’s wife made her initial threat to go to the media.

Burt and Cervantes filed motions claiming absolute immunity, each of which was granted in part and denied in part.

But Fletcher said the district judge was misled by the Supreme Court’s “inadvertent misstatement” in Kalina v. Fletcher (1997) 522 U.S. 118, that “[i]n determining immunity, we accept the allegations of respondent’s complaint as true,” and by a similar statement by the Ninth Circuit in the underlying Kalina case.

  The statements are “flatly inconsistent with established law” Fletcher said, as indicated by the fact that the case cited for the proposition involved a motion to dismiss. “These statements cannot have been intended, and should not be taken, as requiring that a motion for summary judgment based on official immunity be decided outside the ordinary framework for deciding motions for summary judgment.”

The case is Butler v. Cervantes, 02-57049.


Copyright 2004, Metropolitan News Company