Thursday, June 13, 2002
Judge Throws Out Suit Accusing Cooley of Framing Lawyer for Perjury
By KIMBERLY EDDS, Staff Writer
District Attorney Steve Cooley and a fellow prosecutor did not use false evidence to frame an attorney on charges he concocted a false defense for an accused murderer, U.S. District Judge Dean D. Pregerson of the Central District of California has ruled.
In a 19-page decision made public yesterday, Pregerson wrote that attorney Leonard R. Milstein failed to show Cooley and Deputy District Attorney Robert Foltz participated in continuous conduct designed to take away his right to due process.
“Because the Court finds that the defendants did not violate Milstein’s constitutional right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government, the defendants’ subsequent conduct based on the alleged false evidence is likewise found not to violate Milstein’s constitutional rights,” Pregerson wrote.
Milstein accused Cooley and Foltz of striking back at him after Milstein saved his client from the death penalty in a double murder case.
Milstein, who now practices in San Luis Obispo, represented Brad Millward in his 1989 trial for two drug-related murders. Millward was acquitted of one count of murder, but the jury deadlocked on a second count, and he later pled guilty to voluntary manslaughter and was sentenced to state prison.
But Cooley—then head deputy in the Antelope Valley, where Milstein’s client was prosecuted—and Foltz later accused Millward and Milstein of scheming to use several jailhouse informants to come up with a false defense.
Milstein was convicted in 1995 of one count of conspiracy to obstruct justice; two counts of perjury; one count of offering false documentary evidence; one count of preparing false documents for evidence; and one count of bribery of a witness. The jury acquitted on two charges—solicitation to commit a crime and subornation of perjury.
Milstein’s three-year jail sentence was reversed by the Court of Appeal, which said there was insufficient admissible evidence. The court cited the traditional rule requiring corroboration of an alleged co-conspirator’s testimony.
Milstein claimed Cooley and Foltz violated his civil rights by encouraging one of his witnesses in the murder trial to give false testimony against him, and by initiating a criminal investigation by filing a false report describing themselves as witnesses and then conducting the investigation themselves.
Cooley’s attorney, Steven D. Blades, called the ruling a victory for all prosecutors.
“I think this is not only a vindication of Mr. Cooley and Mr. Foltz, but really all of those people in the District Attorney’s Office who deal with allegations of corruption in the justice system,” he told the MetNews.
Blades dismissed Milstein’s allegations the prosecutors went after him because he beat them in court. An investigation into the charges was initiated in July 1989 and Millward’s verdict in the murder trial was returned in October.
“How can you have a premonition or a crystal ball that says ‘we’re going to lose this, so let’s get it started,’” Blades said.
Cooley expressed his commitment to rooting out corruption in a statement released late yesterday.
“Despite the harassment of frivolous lawsuits such as these, I have always felt strongly that a public prosecutor’s job is to pursue cases of alleged corruption of the justice system and within government,” Cooley said in a statement. “That was the case then. That is the case now.”
Milstein’s federal suit was dismissed once before by Pregerson, who then held that—as prosecutors—Cooley and Foltz had absolute immunity with respect to all of the allegations.
But Judge Procter Hug Jr. said the district judge had erred in applying the immunity to activities outside the scope of the prosecutorial function.
It isn’t the prosecutor’s job to fabricate evidence, file a false crime report, act “in the role of detective rather than advocate” by investigating crimes that haven’t been charged, or make comments to the media, Hug ruled.
The court agreed with the district judge, however, that asking for a grand jury indictment, opposing the appointment of particular counsel, and instructing an investigator with respect to the contents of a criminal complaint are within the role of prosecutor and thus covered by immunity.
Milstein’s attorney, Stephen Yagman, said he had not yet seen the ruling, but commented that the dismissal of a case doesn’t mean it is over.
“I’m never disappointed or happy with a ruling because the only thing that matters is what happens in the end and this isn’t the end of this case,” Yagman said.
An appeal would probably be filed and Yagman predicted Pregerson’s decision would be reversed by the Court of Appeal, just as it was the first time.
“Judge Pregerson is a fantastic judge who usually doesn’t make any mistakes, but sometimes he makes mistakes,” Yagman said.
Milstein also sued Cooley for defamation in state court over a comment Cooley made to a reporter on the lawsuit, but the Court of Appeal for this district ruled in March that the alleged statement was protected by the First Amendment. The suit was held to be a strategic lawsuit against public participation and the defendants were awarded $22,000 in costs and attorney fees last year. Milstein has not yet paid that judgment, Blades said.
The State Bar has launched a disciplinary investigation against Milstein. A State Bar spokesman declined to comment on why the investigation was launched, but said the results will be publicly released tomorrow.
Milstein could not be reached for comment.
Copyright 2002, Metropolitan News Company