Thursday, May 9, 2013
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Ninth Circuit Revives Suit by Freed Inmate Over Use of Informant
Court Says District Attorney’s Policymaking Role Subjects County to Liability
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday reinstated a suit against Los Angeles County by a man who spent 24 years in prison based on testimony he says was manufactured by a jailhouse informant.
Thomas Lee Goldstein claims he was wrongfully imprisoned because a former district attorney and his top aide failed to protect against the possibility of cases being prosecuted by lawyers who were unaware of promises their colleagues made to informants.
The panel yesterday held that the county has potential liability for wrongful imprisonment because the district attorney acts as its top policymaker in determining and implementing the use of jailhouse informants.
Judge Sidney Thomas, writing for the Ninth Circuit, said U.S. District Court Judge A. Howard Matz—who has since retired—erred in his 2009 ruling that former District Attorney John Van de Kamp and former Chief Deputy District Attorney Curt Livesay were acting as officers of the state, not the county.
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 sued the city of Long Beach, four current or former police officers, the county and two deputy district attorneys, along with Van de Kamp and Livesay.
Absolute Immunity
The deputy district attorneys—Patrick Connolly, now a Los Angeles Superior Court judge, and Ann Ingalls—were dismissed on the basis of absolute prosecutorial immunity, and the U.S. Supreme Court ruled in January 2009 that Van de Kamp and Livesay had absolute immunity as well. The city and the officers settled, so the county is the sole remaining defendant.
Goldstein claims 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 on a Long Beach street.
A college student and former U.S. Marine with a minor criminal record for drunkenness and disturbing the peace, Goldstein was arrested two weeks after the shooting, and police said an eyewitness, Loran Campbell—now deceased—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.
Skullduggery Alleged
Goldstein’s lawyers claim that Campbell—who testified for the prosecution, identifying Goldstein as the shooter, but retracted that identification 20 years later—did not identify Goldstein’s photo until after detectives specifically picked it out 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. Four years after he filed a habeas corpus petition in 1998, U.S. Magistrate Judge Robert Block 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 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.
After the U.S. Supreme Court overturned lower court rulings that would have allowed Goldstein to sue Van de Kamp and Livesay in a unanimous opinion by Justice Stephen Breyer—who said that the types of decisions for which the two were being sued were so closely related to the process of trying cases that absolute immunity applied—the county sought judgment on the pleadings, arguing that Van de Kamp and Livesay were acting on behalf of the state.
Supreme Court Opinion
Matz agreed, reasoning that existing Ninth Circuit precedent examining the functions of California district attorneys and the control to which they are subject in light of the U.S. Supreme Court’s opinion in McMillian v. Monroe County (1997) 520 U.S. 781 compelled him to “reluctantly” conclude that district attorneys act as agents of the state.
Thomas, however, in his opinion yesterday, said the state’s control over the district attorney is limited, and does not extend to the area of policy over which Goldstein is suing.
The judge noted that while the attorney general may step into a case and prosecute it herself, she may not instruct the district attorney as to how to prosecute cases that remain the district attorney’s responsibility.
Thomas also pointed out that the district attorney is paid by the county, must account to the county for funds spent by her office, may defend the county in an eminent domain proceeding brought by the state, and may look to the county for defense and indemnification in an action for damages.
With respect to informant policy specifically, Thomas cited the reports of the 1989-1990 Los Angeles County Grand Jury and the California Commission on the Fair Administration of Justice, both of which called on the district attorneys of the state—not the Legislature or the attorney general—to create written policies and establish centralized databases of in-custody informants.
Thomas was joined by Judge Stephen Reinhardt and visiting District Judge Gloria M. Navarro of the District of Nevada.
Attorneys on appeal were Barrett S. Litt and Lindsay B. Battles of Litt, Estuar & Kitson, LLP for the plaintiff and Tomas A. Guterres and Catherine M. Mathers of Collins Collins Muir + Stewart LLP and Timothy T. Coates and Cynthia E. Tobisman of Greines, Martin, Stein & Richland LLP for the county.
The case is Goldstein v. City of Long Beach, 10-56787.
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