Public Defense

Removing prosecutorial immunity

By Gideon

As highlighted in this L.A. Times article and this Scotusblog summary, the Justices will announce tomorrow whether cert will be granted in Goldstein v. Van de Kamp [9th Cir. decision here]. Goldstein was released from prison after serving 24 years for a crime he did not commit.

Goldstein was ordered released after 24 years in prison after the sole eyewitness recanted and doubts emerged about a supposed confession by Goldstein to an informant. Years after his conviction, Goldstein learned that his jailhouse accuser — a three-time felon — had lied in court when he denied having received promises of special treatment from another county prosecutor in exchange for his testimony.

The lawsuit alleges that the prosecutor’s office failed to set up an intra-office system to disseminate information on the reliability of informants and because of that Goldstein was convicted based on false testimony from an unreliable informant.

The Los Angeles County district attorney’s office, the nation’s largest prosecution office, once made regular use of jail informants, but at the time it had no system for sharing information among prosecutors countywide about which informants were reliable and what they had been promised.

Van de Kamp, the chief prosecutor from ‘75 to ‘83 has claimed full immunity.

Prosecutors and some observers are all atwitter:

Regardless, the immunity rule should be preserved as an important judicial safeguard, [law prof] Levenson said. “We don’t want [prosecutors] looking over their shoulders. In order to be independent and to make tough calls, they can’t be worrying about whether they will be sued.”

I agree. For the most part. However, given the recent surge in exonerations, why is it not time to reconsider whether prosecutors can be sued in a limited set of circumstances? This seems doubly important given the reluctance of many states to enact compensation statutes for the wrongly convicted.

Consider the scenario where a prosecutor knowingly offers false testimony that leads to a wrongful conviction or hides Giglio material - or even Brady material. Why should that prosecutor (or the State) be immune from suit? Do we want to encourage that behavior? Does that assist in the pursuit of justice? Heck, defense lawyers are regularly sued by clients.

I understand that is not what the lawsuit alleges, but on this lazy Sunday afternoon, it is worth thinking about. What exactly are we protecting when we bar suits that seek to place blame with the appropriate person in appropriate circumstances?

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Full post as published by A Public Defender on April 13, 2008 (boomark / email).