A Crack in the Shield of Immunity for Prosecutors?

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I read in the
that the United States Supreme Court will take up
a case to decide if a former Los Angeles County District Attorney
can be sued for his part in a man’s wrongful conviction.

The case involves
former Marine Tom Goldstein who spent 24 years in prison on a murder
conviction that was primarily based upon the testimony of a jailhouse
snitch. The prosecution had no fingerprints, forensic evidence,
or weapon. They did have the testimony of an informant who was a
pro and who had a long history that should have been known by the
defense at trial — but it was not known by the defense, since the
prosecution did not disclose that information. If the defense had
known details about the snitch they would have had the opportunity
to show to the jury that this was testimony bought and paid for
by the prosecution. However, management at the District Attorney’s
Office did not put any system in place to track informants. Also,
identities of informants and any information on their records was
protected information. So an innocent man spends 24 years in jail
because of the record-keeping rules in the District Attorney’s Office,
in addition to the use of false testimony.

he was bitter about how he had been treated. He has always
maintained his innocence and had been convicted on the basis of
testimony from an unreliable jailhouse informant and an eyewitness
who later recanted. In recent years, five federal judges all agreed
that Goldstein’s constitutional rights had been violated by the
Los Angeles County district attorney’s office."

Many Americans
are unaware that it is an undeniable
that many innocent people have been wrongly convicted of
crimes as a result of prosecutorial misconduct. In spite of the
evidence of many instances of misconduct, prosecutors are very rarely
disciplined for their misconduct. Even more rare is the prosecutor
who is charged with a criminal count due to his misconduct in the
handling of a case. Worse still, the victims of any misconduct are
generally denied civil remedy because of prosecutorial immunity.
In other words, the prosecutor may commit heinous abuses of one’s
civil rights and there is generally nothing anyone can do about
it. Surprised? I was.

The Supreme
Court in 1976 ruled that "prosecutors, like judges, must be
free to do their jobs without fear of being sued later" and
that this rule of "absolute immunity" applies when a prosecutor
"acts within the scope of his prosecutorial duties." This
means that the prosecutor knows beforehand that almost no action
that he takes in a case will result in civil or criminal punishment.
This is an open invitation and temptation to act in the manner of
a tyrant. History is full of examples of what happens when a powerful
man is not held accountable for his actions.

The legal team
representing Mr. Goldstein is trying a novel approach to the problem
of prosecutorial immunity. Instead of suing the prosecutor who handled
the case in court, they have sued the District Attorney who set
policy and had the responsibility to supervise conduct of those
under his authority.

The LA Times

After his release, Goldstein sued John Van de Kamp, who was the
Los Angeles County district attorney from 1975 to 1983. He alleged
that Van de Kamp and his top deputy allowed prosecutors throughout
the county to make use of jailhouse informants, many of whom were

Moreover, the county had no system for sharing information on
whether informants had been used before and had been given promises
in exchange for their testimony.

"The left hand didn’t know what the right hand was doing,"
said Alexandra Natapoff, a professor at Loyola Law School who
has studied the use of informants. "The culture was that
the identity of snitches must be kept secret."

In Goldstein’s case, Edward F. Fink, a repeat criminal, was put
on the witness stand to testify that Goldstein, while in a holding
cell, had confessed to shooting his neighbor. Goldstein maintained
his innocence, and years later, it was revealed that the informant
lied when he denied receiving favors from county officials in
exchange for his testimony.

Goldstein said his suit, if successful, "would put every
prosecutor’s office on notice they need to establish an information
management system for informants. And that will result in fewer
wrongful convictions."

Lawyers for Van de Kamp said the suit should be thrown out on
the grounds of prosecutorial immunity. But U.S. District Judge
A. Howard Matz in Los Angeles and the U.S. 9th Circuit Court of
Appeals in San Francisco refused. They said prosecutors could
be sued for managerial failures that result in a wrongful conviction.

The defense
team representing John Van de Kamp is claiming that prosecutors
must be given absolute immunity for any action, otherwise the floodgates
would open and every prosecutor in America would be swamped with
lawsuits. In fact this is merely a tiny crack in the shield of prosecutorial

What is it
about this case that has many prosecutors in America afraid that
Goldstein might win? Accountability. They are frightened that they
will be held accountable for their actions. I think it would be
a great thing for America’s prosecutors to be scared to death that
they will be held accountable for sending innocent men to prison
or death row because they screwed up. Unlike some lawyers who have
commented on this case, I think that prosecutors are violating due
process on purpose rather than by accident in the majority of these
cases. Regardless, it would be a wonderful thing to see men held
accountable for the destruction of the lives of the innocent.

Attorney discipline
rarely is applied to prosecutors. If a court holds that a prosecutor
has committed misconduct, then generally the worst thing that happens
to the prosecutor is that the case in question is overturned and
must be retried.

One attorney

the expectations of ethical conduct by prosecutors are so low,
and the willingness to turn a blind eye to their ethical lapses
is so high, that they have no reasonable fear of being held accountable
in any forum for their failings, whether deliberate or incompetent.
Essentially, they are given carte blanche to be bad."

I am reminded
of how long I resisted Murray Rothbard’s claims that the state could
not deliver justice consistently, but private justice could. It
took me years before I could let go of that one aspect of my imagined
need for a minimal state. I knew that nothing else the state did
was needed, but I had trouble believing that state was not needed
to deliver justice. I think examples like what happened to Mr. Goldstein
show that a state-run monopoly on "justice" is never going
to produce the fairness and due process that we imagine that it

It is high
time to give private justice a try, but we know that this is not
going to happen here in this country anytime soon. Until we can
have private justice, we at least need to make prosecutors accountable
for their actions in office. We need strip them of all immunity.
The case under consideration here will not do that, but it is a
step in the right direction.

22, 2008

Joseph Potter
[send him mail] lives
in Florida and teaches in a small private school.

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