Metropolitan News-Enterprise


Tuesday, September 28, 2004


Page 1


Ninth Circuit Rules: Prosecutor Not Immune From Liability for Suborning Perjury


By KENNETH OFGANG, Staff Writer/Appellate Courts


Absolute prosecutorial immunity from federal civil rights suits does not extend to claims of suborning perjury during the investigative stage of proceedings, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel ruling allows David Genzler to proceed with his claim that he was wrongfully charged with murder because former San Diego Deputy District Attorney Peter Longanbach and an investigator, Jeffrey O’Brien, persuaded a witness to lie.

The panel did, however, rule that former District Attorney Paul Pfingst, former Assistant District Attorney Greg Thompson, and Deputy District Attorney James Pippen are immune from claims they condoned prosecutorial misconduct by Longanbach, a subordinate.

Such allegations, even if true, relate to the prosecutorial function, rather than to the investigative one, and are thus covered by absolute immunity, Judge William Fletcher wrote for the Court of Appeals.

Genzler was convicted of second-degree murder in 1996 in connection with the death of a surfer in Ocean Beach. That conviction was overturned on appeal.

At a second trial in August 2000, Genzler, who had claimed self-defense, was convicted of involuntary manslaughter.

 He was released from prison in February 2001 and sued Pfingst, Thompson, Longanbach, Pippen, O’Brien, and San Diego County. He alleged that Longanbach engaged in multiple acts of misconduct, including persuading Genzlerís girlfriend to give false testimony at the preliminary hearing, and did so in part because the Pfingst and the other supervisors encouraged a ìwin at all costsî mentality.

Longanbach, who was promoted to head of the officeís economic crimes unit after Genzlerís allegations surfaced, later resigned from the office and pled guilty to felony grand theft in connection with separate allegations that he used county staff and resources to conduct personal real estate business. He was placed on probation and ordered to serve a day in jail and perform community service.

 He was placed on interim State Bar suspension in January 2002. Earlier this year, he was suspended for two years, retroactive to the date of interim suspension, and must show rehabilitation in order to be readmitted.

He has relocated to North Carolina, according to State Bar records.

The Genzler case and the unrelated allegations against Longanbach became prominent issues in the 2002 contest for district attorney, in which Pfingst, who was first elected in 1994, was defeated by former San Diego Superior Court Judge Bonnie Dumanis.

Most of Genzlerís claims against Longanbach were thrown out on grounds of absolute immunity by U.S. District Judge Judith Keep of the Southern District of California. But Keep—who died Sept. 14—held that the immunity does not apply before probable cause is established, so that the prosecutor could be held liable for suborning perjury at the preliminary hearing.

Fletcher said the issue was one of function, rather than timing. But the fact that Longanbach and O’Brien met with the witness before the case had been formally charged and before the police had officially closed their investigation was relevant in determining whether they were performing investigative or prosecutorial functions, the judge said.

Viewing the evidence in the light most favorable to the plaintiff, Fletcher said, it appears that the defendants were ìengaged in the process of “acquiring” or manufacturing evidence during performance of an investigative function, rather than engaged in quasi-judicial advocacy.”

Fletcher, however, rejected the district judgeís conclusion that three claims against Longanbachís superiors—that they knew that Longanbach had granted a witness immunity in exchange for perjured testimony, that Longanbach promised that he would win the case, and that they allowed Longanbach to use perjured testimony to cause the recusal of Genzlerís former counsel—were not covered by absolute immunity.

The district judge said the claims were triable because the alleged misconduct was ìadministrativeî in nature, rather than arising from the prosecutorial function. But Fletcher said the alleged conduct was ìintimately associated with the judicial phase of the criminal process,” and the defendants thus immune.

The opinion was joined by Judge Harry Pregerson and Senior Judge Robert E. Cowen of the Third Circuit, sitting by designation.

In a similar case yesterday, another Ninth Circuit panel held that two prosecutors and an investigator, who obtained a search warrant in connection with the investigation of alleged environmental crimes in Amador County in 1998, have absolute immunity to the extent that they were searching for evidence of crimes for which an indictment had already been handed down.

But that panel, made up of Senior Judges Alfred Goodwin and A Wallace Tashima and Judge Kim M. Wardlaw, said the defendants were not absolutely immune with respect to a ìcollateral investigationî into whether a partnership allegedly controlled by the defendant in the environmental case had engaged in financial fraud.

The cases are Genzler v. Longanbach, 02-56572, and KRL v. Moore, 02-15296.


Copyright 2004, Metropolitan News Company