Metropolitan News-Enterprise


Thursday, March 29, 2007


Page 1


NInth Circuit Rules:

Man Imprisoned for 24 Years May Sue Van de Kamp, Livesay


By a MetNews Staff Writer


A former district attorney and his top aide lack absolute immunity from liability to a man who alleges he was wrongfully imprisoned because they failed to protect against the possibility of cases being prosecuted by lawyers who were unaware of promises made by their colleagues to informants, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In an opinion by Senior U.S. District Judge Thelton Henderson of the Northern District of California, sitting by designation, the panel affirmed an order allowing Thomas Lee Goldstein to sue former District Attorney John Van de Kamp and former Chief Deputy District Attorney Curt Livesay.

The panel, which also included Judge Stephen Reinhardt and Senior Judge Robert Beezer, agreed with District Judge Howard Matz of the Central District of California that the alleged civil rights violations by Van de Kamp and Livesay involved administrative functions and were thus not covered by the rule of absolute prosecutorial immunity.

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, and two deputy district attorneys, as well as Van de Kamp and Livesay.

Yesterday’s appeal only concerned the claim against Van de Kamp and Livesay. Two deputy district attorneys, Patrick Connolly and Ann Ingalls, were dismissed from the case earlier, while a motion to dismiss the county was denied in an order that was affirmed by a different Ninth Circuit panel.

Goldstein claims that 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.

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.

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 convicted and sentenced to 27 years to life in prison, and his appeal was unsuccessful. He filed a habeas corpus petition in 1998, and four years later, U.S. Magistrate 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.

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

   That probe was 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.

The claim against Van de Kamp and Livesay is based on Giglio v. United States, 405 U.S. 150, 154 (1972), which held that prosecutors’ offices have a constitutional obligation to establish “procedures and regulations . . . to insure communication of all relevant information on each case [including promises made to informants in exchange for testimony in that case] to every lawyer who deals with it.”

The two highly-placed prosecutors, either purposely or with deliberate indifference to the rights of defendants, failed to train and supervise deputies to ensure that they shared information about promises made to informants, the complaint alleges.

In his opinion for the court, Henderson acknowledged that neither the Supreme Court or the Ninth Circuit has ruled whether Giglio-type claims are subject to absolute immunity. But under the facts alleged by Goldstein, the judge said, absolute immunity is inappropriate.

“The allegations against Van De Kamp and Livesay...bear a close connection only to how the District Attorney’s Office was managed, not to whether or how to prosecute a particular case or even a particular category of cases,” Henderson wrote. “Consequently, the challenged conduct is not prosecutorial in function and does not warrant the protections of absolute immunity.”

The appellate lawyer for Van de Kamp and Livesay, Stephen Renick of Manning & Marder, Kass, Ellrod, Ramirez, said he was “certainly looking at the possibility” of seeking en banc rehearing or petitioning the U.S. Supreme Court to hear the case.

“The court was clear this is an issue of first impression,” Renick told the MetNews.

Goldstein is represented by Pasadena lawyers Ronald Kaye, David McLane, and Marilyn Bednarski.

The case is Goldstein v. City of Long Beach, 06-55537.


Copyright 2007, Metropolitan News Company