Metropolitan News-Enterprise


Thursday, October 11, 2007


Page 1


S.C. to Rule on Whether Litigant Can Access Grand Jury Materials

Justices Unanimously Agree to Rule on Discovery Sought by Man Who Spent 24 Years in Prison




The California Supreme Court yesterday agreed to decide whether a plaintiff in a wrongful imprisonment case may be entitled to discovery of grand jury materials he contends might contain favorable evidence.

The justices, at their weekly conference in San Francisco, voted unanimously to review the decision of Div. Three of this district’s Court of Appeal in Goldstein v. Superior Court (Grand Jury of the County of Los Angeles), B199147.

The court also granted several other petitions for review, including one by a pair of longtime San Francisco 49ers season ticket holders whose challenge to the team’s policy of patting down fans at the gate for security purposes was turned down by the First District Court of Appeal.

In the wrongful imprisonment case, the Court of Appeal on Aug. 23 ordered a trial judge to reconsider his order denying attorneys for Thomas Goldstein the right to review materials related to the 1990 grand jury investigation of use of jailhouse informants by Los Angeles prosecutors.

First Degree Murder

Goldstein spent 24 years in prison on a first degree murder conviction before a federal judge found that exculpatory evidence had been withheld from his attorneys. He has sued the City of Long Beach, four current or former police officers, Los Angeles County, former District Attorney John Van de Kamp, and former Chief Deputy District Attorney Curt Livesay.

His federal complaint says police used “false and fabricated evidence,” including a jailhouse informant’s made-up claim of a confession, to convict him of the 1979 shotgun murder of John McGinest.

Van de Kamp and Livesay, whose claim of absolute prosecutorial immunity was rejected by the Ninth Circuit, are accused of having failed to implement policies requiring prosecutors who hand off their cases to colleagues to inform them as to whether any promises were made to jailhouse informants in exchange for their cooperation.

Los Angeles Superior Court Judge Peter Espinoza ruled that because none of the statutes permitting public release of grand jury materials applied to Goldstein’s request, the court could not order disclosure for purposes of a lawsuit, even under a protective order.

That was error, Presiding Justice Joan Dempsey Klein explained for Div. Three, because the trial court has “inherent authority to prevent injustice and...supervisory power over the grand jury.” Citing an 1884 state Supreme Court decision, Klein said the trial court may grant discovery of grand jury materials “for the purposes of public justice, or for the protection of private rights.’”

She endorsed the three-part test followed by federal courts, in which the trial judge must determine whether the moving party needs the material “to avoid injustice,” whether there is a continuing need for secrecy that outweighs the moving party’s needs; and whether the request is structured so that no materials are released unnecessarily.

Goldstein, a college student and former U.S. marine with a minor criminal record for drunkenness and disturbing the peace, was arrested two weeks after McGinest was shot dead on a Long Beach street. Police said an eyewitness, Loran Campbell—now deceased—had picked Goldstein out of a photo array.

He was convicted primarily on the testimony of Campbell and Edward Fink, who testified that he was in the same jail cell as Goldstein and that Goldstein confessed to killing McGinest in a fight over money.

Identification Retracted

Goldstein’s lawyers claim that Campbell—who testified for the prosecution at trial, identifying Goldstein as the shooter, but retracted that identification 20 years later—did not identify Goldstein’s photo until after detectives specifically picked out that photo and falsely told Campbell that Goldstein was “the suspect” in the case.

Goldstein was sentenced to 27 years to life in prison, but was freed after U.S. Magistrate Judge Robert Block of the Central District of California concluded there was strong evidence that Fink had struck a deal with prosecutors, and that the prosecutors’ failure to tell the defense about it denied Goldstein a fair trial.

Block cited a 1990 grand jury report that documented the widespread use of false testimony from jailhouse informants in Los Angeles County during the late 1970s and 1980s.

That report was the product of probes by two successive grand juries,  spawned by the revelation by prolific informant Leslie Vernon White that he was able to obtain information about cases, arrange to be placed in the same cell as those defendants, and then produce fabricated tales about confessions that were sufficiently detailed to come across as genuine.

In the patdown case, the court voted 6-1 to review the ruling in Sheehan v. The San Francisco 49ers, Ltd., A114945. Only Justice Marvin Baxter voted to leave standing the First District panel’s 2-1 ruling that season ticket holders had no basis for challenging the patdowns.

The lower court had affirmed the dismissal of a suit by longtime 49ers fans Daniel and Kathleen Sheehan, who alleged that the patdown policy used to screen fans at Monster Park, formerly Candlestick Park, violated their privacy rights.

The Sheehans filed sued in December 2005, months after the 49ers instituted patdown screenings for all ticket holders seeking entry to home games. The screening procedures were adopted following the NFL’s promulgation of an inspection policy based on post-Sept. 11 concerns.

In urging franchises to implement security patdowns for the public’s protection, the league noted that NFL stadiums were attractive terrorist targets due to their high-profile nature.

Under the 49ers’ policy, private screeners are tasked with physically inspecting all ticket holders as a condition of entry to the stadium, by running their hands around game goers’ backs and down the sides of their bodies and legs. San Francisco police officers are stationed nearby during the inspections.

The Sheehans, who held 2005 season tickets, alleged that the frisks they underwent before each game at Monster Park that year violated their privacy rights under the state Constitution. They sought to have the 49ers’ patdown policy declared invalid, and to obtain an injunction barring its further application.

San Francisco Superior Court Judge James Warren, since retired, sustained the demurrer after concluding the Sheehans had no reasonable expectation of privacy—and thus no viable claim—concerning the patdown policy.

Through attending the 2005 season games, they had advance notice of the patdown policy and impliedly consented to the patdowns by voluntarily purchasing the 2006 tickets, he ruled.

Writing for the Court of Appeal majority, Justice Timothy A. Reardon agreed.

The couple clearly had “full notice” that a patdown was a required prior to entering the stadium, he said, concluding:

“By voluntarily re-upping for the next season under these circumstances, rather than opting to avoid the intrusion by not attending the games at Monster Park, the Sheehans impliedly consented to the patdowns.”

Reardon also dismissed the plaintiffs’ contention that the patdown placed an unconstitutional condition on entry to the games.

“The inspections in this case were not conducted pursuant to the police power of the state with authority to arrest; rather, they were conducted by private screeners, on behalf of a private entity,” the justice wrote. The Sheehans thus “had the choice of walking away, no questions asked,” rather than submit to the patdown, he said.

Presiding Justice Ignazio J. Ruvolo concurred in the opinion, while Justice Maria P. Rivera dissented.

The fact that the Sheehans in 2005 purchased the following season’s tickets did not amount to consent to the patdown policy, Rivera argued. The dissenting jurist also asserted that the team did not fulfill its constitutional obligations by giving its fans a choice between being frisked at the gate or not going to the games.

“If you are the only game in town, requiring your customers to either submit to a patdown search or walk away does not present the kind of genuine choice upon which the majority’s reasoning is premised,” she wrote.

In other action, the court:

•Agreed to resolve a conflict among Court of Appeal panels as to whether, under Code of Civil Procedure Sec. 128.7, attorney fees can be awarded as sanctions to an attorney representing himself or herself. The First District’s Div. Four held in Musaelian v. Adams, A112906, that such an award is not permitted, contrary to Laborde v. Aronson (2001) 92 Cal.App.4th 459 and Abandonato v. Coldren (1995) 41 Cal.App.4th 264.

•Denied Lady Cage-Barile’s latest bid to regain the right to attend the Church of Christ in Hollywood. The church has banned the former member from its premises for various actions, including disrupting services by calling the minister and other church officials “agents of Satan” because they allow people who have divorced and remarried to participate in church ministries.

In the most recent case, Cage-Barile, representing herself, argued that the injunction barring her had expired after three years under the anti-harassment statute, Code of Civil Procedure Sec. 527.6. The Court of Appeal, in a ruling left standing by the Supreme Court, held in an unpublished opinion that her misconduct was not limited to harassment, so Sec. 533, which places the burden on the defendant to show changed circumstances before an injunction can be lifted, applied.

•Declined to review a ruling by this district’s Div. Seven that local bans on the practice of animal declawing do not conflict with state regulations governing the veterinary profession in California.

The California Veterinary Medical Association had challenged an ordinance enacted by the City of West Hollywood, which found that declawing procedures cause “unnecessary pain, anguish and permanent disability to animals” and bars any person, “licensed professional or otherwise,” from performing declawing procedures unless necessary for a “therapeutic purpose.”


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