A Crack in the Shield of Immunity for Prosecutors?


I read in the LA Times 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.

"Goldstein said 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 fact 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 wrote:

"… 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 untrustworthy. 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 immunity.

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 wrote:

"Traditionally, 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 should.

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.

April 22, 2008