Metropolitan News-Enterprise


Friday, August 24, 2007


Page 1


Court of Appeal Overturns Denial of Access to Grand Jury Materials




The Court of Appeal for this district yesterday ordered a trial judge to reconsider his order denying access to grand jury materials to a man suing county officials for false imprisonment.

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

“...Goldstein seeks discovery of grand jury materials to redress an injustice investigated by the grand jury, and he is willing to abide by a protective order limiting the use of the grand jury materials to his pending federal civil rights case,” Presiding Justice Joan Dempsey Klein explained.

 Citing an 1884 state Supreme Court decision, the presiding justice wrote:

“In these circumstances, we conclude the Superior Court of Los Angeles County, as part of its inherent authority to prevent injustice and as part of its supervisory power over the grand jury, has discretion to grant Goldstein’s motion if he is able to demonstrate that disclosure is necessary ‘for the purposes of public justice, or for the protection of private rights.’”

Suing Long Beach

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.

In March, the Ninth Circuit ruled that Van de Kamp and Livesay lack absolute prosecutorial immunity. The allegation that they failed to failed to protect against the possibility of cases being prosecuted by lawyers who were unaware of promises made by their colleagues to informants deals with administrative functions to which absolute immunity does not attach, the federal panel ruled.

Photo Array

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 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.

Goldstein last year requested that he be allowed access to the grand jury materials, solely for use in his federal suit. After court counsel objected, his counsel filed a formal motion for access.

Espinoza denied the motion in March, ruling that in the absence of a statute expressly permitting disclosure, Goldstein could not overcome the presumption in favor of grand jury secrecy.

Klein, writing for the Court of Appeal, agreed that none of the Penal Code sections cited by Goldstein in support of his motion—924.9, which deals with contradictions between a witness’ grand jury testimony and his testimony in the ensuing trial; 929, which permits inclusion of evidentiary material in grand jury reports; and 939.1, which permits grand juries to sit in public session—apply to the case.

But the presiding justice rejected the trial judge’s conclusion that he lacked inherent authority to order disclosure.

Citing state and federal authority, Klein said there is an “interests of justice” exception to the rule of grand jury secrecy. 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.

Klein went on to say that if the trial judge finds that the moving party has not satisfied the three-pronged test, comity requires that the court “state in writing the need for continuing secrecy so that the federal court may consider this factor in determining whether Goldstein is entitled to access these materials under federal law.”

The case is Goldstein v. Superior Court (Grand Jury of the County of Los Angeles), 07 S.O.S. 5224.


Copyright 2007, Metropolitan News Company