Monday, August 31, 2009
Van de Kamp, Political Office Long Behind Him, Remains Active in Public Affairs
By ROGER M. GRACE
Ninety-Seventh in a Series
JOHN VAN DE KAMP, 37th district attorney of Los Angeles County and the 28th attorney general of California, has not held a public office since January of 1991. But during these past 18-plus years, he has hardly dwelled in obscurity, nor suffered boredom.
Van de Kamp was president of the State Bar of California for 2004-2005, after putting in three years on the Board of Governors. He has served as a trustee of the Los Angeles County Bar Assn., and for more than three decades has been a LACBA delegate to what is now known as the Conference of Delegates of California Bar Associations. In 2005, LACBA conferred on him the Shattuck-Price Outstanding Lawyer Award, and earlier this year bestowed on him a Lifetime Achievement Award.
From 1996 to 2004, Van de Kamp was president and general counsel of the Thoroughbred Owners of California. He chaired the City of Pasadena’s Task Force on Good Government in 2005-2006, monitored the Getty Trust in 2006-08, under appointment by the state attorney general, and served as president of the Board of Directors of the Planning and Conservation League from 2005-07.
In 2006, the Rules Committee of the state Senate appointed him to chair the Commission on the Fair Administration of Justice, its aim being the erection of safeguards to prevent wrongful convictions.
It was in that latter role that he drew controversy.
Although the final report was not to be released until June 30, 2008, the commission’s early conclusions were known long before then. The final report was a compilation of 10 released periodically.
Gov. Arnold Schwarzenegger in 2006 vetoed two bills that had been enacted by the Legislature in response to Fair Commission recommendations. SB 1544 would have required the development of guidelines by the Department of Justice and the Commission on Peace Officers Standards relating to eyewitness identifications “consistent with the reliable evidence supporting best practices, including consideration of the recommendations of the California Commission on the Fair Administration of Justice.” SB 171 would have mandated audio recording of the police interrogation of suspects.
The following year, three bills based on Fair Commission notions passed the Legislature, but were vetoed. On Oct. 18, Van de Kamp thundered in a public statement:
“Governor Schwarzenegger has taken California out of the front lines of criminal justice reform. His veto of three FAIR Commission bills shows once again the power of California’s law enforcement agencies to block needed justice reform at the state level.
“The three bills:
“tSB 756 requiring the appointment of a task force to consider current research and best practices to develop guidelines for the conduct of police line-ups and photo arrays to increase the accuracy of eyewitness identification,
“tSB 511 requiring the electronic recording of police interrogations that happen in police stations, jails, or other holding facilities for cases involving homicides and other violent felonies, and
“tSB 609 requiring the corroboration of testimony by jailhouse informants, had legislative support and the editorial support of every California newspaper which editorialized about them.
“They were modest bills which were based on the best science and the best practices available. Each was intended to guard the public and the individuals affected by wrongful convictions against the avoidable errors that have led to large dollar judgments inflicted against cities and counties. These were errors which let the guilty go free.”
On July 25, 2007, Los Angeles County District Attorney Steve Cooley spoke before the Italian American Lawyers Assn. and berated the commission. Cooley didn’t like the direction the panel was heading in.
Los Angeles County Public Defender Michael Judge, a member of the commission, was among those in the audience that night. He relayed an account to Van de Kamp who, as Cooley recalls it, came to his office to express indignation.
“He was as angry as I’ve seen him,” Cooley remarks.
The DA now reflects, in an interview:
“I don’t think John ever felt entirely comfortable in a prosecutorial role. It was never really his thing even though he was a former U.S. attorney. I think he’s an absolute gentleman. And politically, he really sees a lot of things, nuances, the dynamics—but I don’t think that he should be out there in the front, charging ahead, with public safety type issues.
“And right now, I think, with the Fair Commission, he is trying to create a legacy…of himself of having improved the criminal justice system. But almost everything that the Fair Commission has proposed, would undermine law enforcement’s ability to investigate, put tremendous burdens on them….”
The commission, Cooley alleges, “was nothing more than sort of a cover for those people who oppose the death penalty, to point out all the weaknesses in the criminal justice system, and then go, ‘AHA!’ ” and assert that in light of the weaknesses pertaining to confessions, interrogations, identifications, and forensic sciences, “you shouldn’t have any faith in the death penalty.”
“He denies that was their objective. But I’ve had numerous people who are close to him and his friends say absolutely that was the objective of the Fair Commission. So here he is, a former DA, a former attorney general, advocating legislation [to] change the law in criminal procedure that [would] do nothing but denigrate public safety and burn law enforcement.”
Cooley stresses: “This is the only disagreement I’ve had with John Van de Kamp.”
Van de Kamp tells me he’s “a little surprised” by Cooley’s comments. “He’s assigning motives to me,” the lawyer says, sitting in his office at Dewey & LeBoeuf where is of counsel.
He’s irked, and becomes animated, saying:
“Tell me if Steve opposes what he’s done—what he has done with respect to jailhouse snitches. Since 1991, they’ve had a very good policy in the office about avoiding jailhouse snitches. Ask him if he thinks that was wrong.”
(In 1991, the district attorney was Ira Reiner. He was followed by Gil Garcetti and Cooley.)
Van de Kamp says he assumes Cooley supports the policy for the same reasons as the commission which urges that “if you’re going to use a jailhouse snitch, get the highest prosecutorial authority in the office to approve it and do it when you have some corroboration.”
He goes on to say:
“They use jailhouse snitch very rarely which is the right policy. I think they’ve done the right thing and we support that. Is that anti-prosecutorial? No.”
Recording interrogations also serves the interests of law enforcement, he insists, reasoning:
“You protect the police, you protect the prosecution when you record interrogations. That’s in favor of strong, fair prosecution.
“I’ll tell you this: that when you record interrogations, give them the Miranda warning, it takes away any questions about whether the Miranda warning was ever given. You help prosecutors more than you help defendants, in my view, if you do it that way.”
It prevents “overreaching” by law enforcement personnel in such ways as interrogating a suspect over a period of “16, 20 hours,” securing confessions by persons who are “willing to say whatever you want them to say, if you’re a policeman, just so they’ll get out of the room.”
False confessions do occur, Van de Kamp continues, saying they are most often from “people who are underage, weak, who have been intimidated and abused, interrogation-wise.” These confessions “come back to haunt local police departments,” he observes, adding:
“By having things recorded—video is obviously superior to audio, but even audio does the trick, you get an idea of what’s going on there—you are helping the prosecution. Steve should know that.”
Van de Kamp declares that the report “pointed out the reality of the death penalty administration in California—which is: it’s going to take up to 25 years today given the number of people we have and the processes that we have in place today to get from judgment to execution.”
He goes on to say:
“We pointed out that through process reforms, you could bring that down to 10 to 12 years. That’s anti-prosecution?
“Now, we also pointed out to do that is going to cost some money. If he wants to go the way we’re going today, on the status quo, then it’s going to take 20, 25 years and people on death row will be there longer and longer and longer. We have more people who of course die by natural causes on death row—by a ratio of four or five to one—than get executed.”
Van de Kamp notes that as DA and attorney general, he obtained death sentences, though he is “personally opposed to the death penalty” (which was used against him in his unsuccessful 1990 bid for the Democratic gubernatorial nomination).
“There are arguments you could get out of our report that given the cost of this business, that would maybe go against [the death penalty]—but those are the facts....
“The process recommendations that we made are: get counsel appointed right off the bat, give help to local counties in terms of the prosecution of death penalty cases, have habeas counsel appointed right off the bat, and have them filed in Superior Court so that you get evidentiary hearings, if necessary, in these cases. Today there’s about a 70 percent turn-back from the federal court once it gets over there, to the state court, because there’s no evidentiary record that they can deal with. And so these cases just go on and on forever.
“There are other process recommendations that we made.
“From a defense standpoint, how do you get counsel appointed? Do you increase the size of the state Office of Public Defender? Do you increase the size of the Habeas Corpus Resource Center that’s appointed by the Supreme Court? I think both of those offices have sustained budget cuts.
“I don’t hear Steve out there arguing that we should get the money to get this thing on track. If he really believes in the death penalty—which I think he does, a lot of people do—then he should be picking up on these recommendations.”
Back to Cooley. He says of his comments about the Fair Commission made in our interview that “John may think they’re a little harsh,” but reiterates that the Fair Commission proposals go “way too far” and says, “I stand by” the criticism “as much as I admire John Van de Kamp for many things.”
The DA says Van de Kamp is “a complex man” who has “felt comfortable wearing many different hats” and that one hat is that of a “defense attorney,” the hat he wore, Cooley maintains, as Fair Commission chair.
WINS HIS CASE—Van de Kamp has been in the news recently in connection with a victory in the United States Supreme Court. He was a petitioner.
The respondent was one Thomas Lee Goldstein who had been imprisoned for 24 years on a murder conviction. Acting on a petition for a writ of habeas corpus, the U.S. District Court for the Central District found that prosecutors wrongfully used testimony of a jailhouse informer—who was, fittingly, named “Fink”—without disclosing to Goldstein’s attorney that the informer had received reduced sentences based on testimony for the prosecution in other cases. The court gave California authorities the choice of releasing Goldstein or re-trying him; the Ninth U.S. Circuit Court of Appeals affirmed; Cooley’s office in 2004 opted to release the man.
The head of the agency that prosecuted Goldstein in 1980 was District Attorney John Van de Kamp and his chief deputy was Curt Livesay. Goldstein sued them under a federal civil rights statute.
U.S. District Judge A. Howard Matz ruled that the defendants did not enjoy prosecutorial immunity because the acts complained of by Goldstein were administrative, and the Ninth Circuit affirmed. But the United States Supreme Court, in a unanimous opinion handed down last Jan. 26, reversed. The opinion by Justice Stephen Breyer says:
“We ask whether that immunity extends to claims that the prosecution failed to disclose impeachment material...due to: (1) a failure properly to train prosecutors, (2) a failure properly to supervise prosecutors, or (3) a failure to establish an information system containing potential impeachment material about informants. We conclude that a prosecutor’s absolute immunity extends to all these claims.”
An irony underlying the case was that one of the objectives of the Fair Commission was to prevent wrongful use of testimony by jailhouse snitches.
Van de Kamp recounts:
“I walked into the Supreme Court when the case was argued with Goldstein. Had a very nice, pleasant conversation. After the argument was over—I think it was fairly clear where the court seemed to be going—he came up to me and said, ‘I want to thank you for the work you’ve done in trying to prevent wrongful convictions.’ ”
Van de Kamp acknowledges that “information was in our hands” which should have been disclosed to the defense. But, he says, there was no “computerized program” that would have enabled the fetching of information about Fink. He explains:
“We never had any policy that was against disclosure of that kind of information. I think if there was any problem in that area, it was the left hand not knowing what the right hand was doing.”
Van de Kamp says he “never had anything to do with this case personally” and didn’t know about it until he was sued.
He relates that depositions were taken of the deputy DA who prosecuted Goldstein and that the deputy swears to having had no knowledge of any promises to Fink in exchange for his testimony.
Copyright 2009, Metropolitan News Company