Jail Informants


D.A.s can be sued over jailhouse informants, court finds
Ruling in the case of a man wrongly convicted in slaying, U.S. 9th Circuit finds that district attorneys aren't immune from claims for failing to establish policies and procedures on such witnesses.
By Henry Weinstein
Times Staff Writer

March 29, 2007

A federal appeals court ruled Wednesday that prosecutors can be sued over allegations that they failed to develop policies for the use of jailhouse informants in criminal cases.

The ruling came in a civil damages case filed by Thomas L. Goldstein, who spent 24 years in prison for a wrongful murder conviction based largely on the testimony of jailhouse informant Edward F. Fink.

Goldstein was convicted in the 1979 shotgun slaying of John McGinest in Long Beach. Fink testified that Goldstein confessed to the murder while they were in the Long Beach City Jail. 

Goldstein maintained his innocence and more than two decades later, a federal judge overturned the conviction because of Fink's credibility problems as well as the prosecutors' failure to tell Goldstein's attorney that they had made a deal to go easy on Fink in a separate criminal case.

After he was freed in 2004, Goldstein sued several Long Beach police officers, Los Angeles County, former Los Angeles County Dist. Atty. John K. Van de Kamp and his chief assistant, Curt Livesay, contending that his federal civil rights had been violated.

In particular, Goldstein alleged that Van de Kamp and Livesay had failed to develop policies and procedures, and failed to adequately train and supervise their subordinates, to fulfill their constitutional obligation of ensuring that information regarding jailhouse informants was shared among prosecutors.

In its 3-0 decision, the U.S. 9th Circuit Court of Appeals in San Francisco upheld a district court ruling and rejected Van de Kamp and Livesay's contention that they were entitled to absolute immunity. 

The decision marked the first time that the 9th Circuit has considered this issue, and the U.S. Supreme Court has never ruled on the precise question. Because of the potential ramifications for prosecutors, Loyola Law School professor Laurie L. Levenson said she thought the case might go to the Supreme Court.

"I'm really happy with the decision," Goldstein said by telephone. "Jailhouse informants have been used by prosecutors to put a lot of innocent people in prison…. The ruling by this court is the first step toward making district attorneys accountable for their actions." 

The failure of the district attorney's office to formulate a policy about jailhouse informants led to "the wholesale deprivation of constitutional rights" of defendants whose cases involved the use of testimony by such informants, said David McLane, one of Goldstein's attorneys.

A 1990 grand jury investigation documented prosecutors' widespread abuse of false testimony by jailhouse informants in Los Angeles County during the 1970s and '80s. By the time of Goldstein's trial, Fink already had three felony convictions. Evidence unearthed after the trial revealed that a number of people in law enforcement had doubts about Fink's credibility.

On Wednesday, Los Angeles attorney Steven Renick, who is representing Van de Kamp and Livesay, said he was disappointed with the decision and said county officials are "actively considering" asking the 9th Circuit to rehear the case with a larger panel of judges or asking the Supreme Court to review it. Livesay, who retired from the prosecutor's office in 2005, said he had not seen the ruling and could not comment.

Van de Kamp said that neither he nor Livesay "had any knowledge of this case or any hand in it" at the time it was prosecuted. The former district attorney said he only learned about the case after Goldstein's conviction had been struck down.

Ironically, Van de Kamp heads the California Commission on the Fair Administration of Justice, which has urged the state Legislature to limit the use of testimony by jailhouse informants in criminal trials. Heeding that recommendation, state Sen. Gloria Romero (D-Los Angeles) introduced a bill barring convictions based on the testimony of an informant who is in custody unless the account is corroborated by independent evidence.

Van de Kamp, who was the L.A. County district attorney from 1975 to 1983 and then California's attorney general for eight years, said he thought elected district attorneys would be very concerned about the ruling because it could expose them to liability in a host of situations. 

Los Angeles County Dist. Atty. Steve Cooley echoed that concern: "The 9th Circuit's decision effectively strips away a long-established protection for public prosecutors." 

In Wednesday's ruling, Judge Thelton Henderson noted that under Supreme Court decisions, prosecutors are absolutely immune for decisions to initiate a particular prosecution or even for presenting testimony they know is false. However, he said, prosecutors do not have absolute immunity for other actions, such as advising police officers during the investigative phase of a case or making public statements regarding criminal proceedings.

The key legal test is whether the conduct at issue is "intimately associated with the judicial phase of the criminal process," Henderson wrote. Failure to develop a policy about jailhouse informants does not meet that test, he said. 

Levenson said the way the law of prosecutorial immunity has evolved led to an ironic result in this case. If Van de Kamp and Livesay "had behaved reprehensibly and intentionally hid evidence … they could not be sued," because that would have been a "prosecutorial act," Levenson said. "But if they were just bad administrators they can be sued." 



Limited use of jail informants urged
State blue ribbon panel says the Legislature should enact laws requiring corroborating evidence if such testimony is offered.
By Henry Weinstein
Times Staff Writer

November 22, 2006

The state Legislature should limit the use of testimony by jailhouse informants in criminal trials, according to the latest report issued by a blue ribbon commission examining problems of wrongful convictions in California.

The California Commission on the Fair Administration of Justice said lawmakers should enact a statute barring convictions based on the testimony of an in-custody informant, unless the account is corroborated by independent evidence. 

Similar corroboration should also be required for jailhouse informant testimony presented in the penalty phase of a capital murder case, according to the 20-member commission, which is chaired by former California Atty. Gen. John Van de Kamp.

The recommended controls, if adopted, would parallel current state law mandating corroboration if testimony by a defendant's accomplices is to be introduced.

Jailhouse informants have been implicated in a number of wrongful convictions, including 46% of those reviewed in a study by professors at Northwestern University Law School, the report noted. Critics say it is all too easy for informants to gather information about their fellow inmates' charges and fabricate testimony to persuade prosecutors to offer them leniency on their cases. 

Of the 117 death penalty appeals pending in the state public defender's office, 17 featured testimony by in-custody informants and six included testimony by informants out on bail or otherwise in "constructive custody." 

Consequently, the commission said "confidence in the reliability of testimony of arrested or charged informant witnesses is a matter of continuing concern to ensure that the administration of justice in California is just, fair and accurate." 

In addition, the commission recommended that "whenever feasible, express agreements in writing should describe the range of recommended rewards or benefits that might be afforded in exchange for trustful testimony by an arrested or charged informant."

At a hearing in late September, John Spillane, the chief deputy district attorney in Los Angeles County, and Gigi Gordon, director of the Post Conviction Assistance Center in Los Angeles, said that the Los Angeles County district attorney's office had dramatically reduced its use of jailhouse informants in the wake of a massive scandal in the late 1980s.

After informant Leslie Vernon White told reporters how easy it was to concoct testimony and get a break in his cases, a special grand jury was convened in Los Angeles and took testimony from 120 witnesses, including six self-professed jailhouse informants.

The grand jury issued a report stating that the district attorney's office had "failed to fulfill the ethical responsibilities required of a public prosecutor" in its use of jailhouse informants.

In the scandal's aftermath, the district attorney's office adopted policy guidelines "to strictly control the use of jailhouse informants as witnesses," the commission report noted. The policy requires "strong corroborative evidence," consisting of more than the informant's apparent familiarity with details of the crime thought to be known only to law enforcement. 

The office also maintains a central index of jailhouse informants who have offered to be or who have been used as witnesses, Spillane told the commission in September.

Spillane said that no jailhouse informant testimony had been approved in Los Angeles County in the last 20 months, and on only 12 occasions in the last four years.

However, the commission indicated in the report issued late Monday that the picture was far from clear in other parts of the state.

Only nine of 58 district attorney's offices in the state responded to inquiries from the commission about their practices on jailhouse informants.

"I am shocked that years after the Los Angeles informant scandal demonstrated the problems with informant testimony, only nine district attorney offices in the state have written policies addressing the issue," Natasha Minsker, an attorney for the American Civil Liberties Union of Northern California who testified at the September hearing, said Tuesday. 

Four other large counties — Orange, San Bernardino, Santa Clara and Ventura — have adopted written policies similar to Los Angeles', and all restrict use of jailhouse informants. But according to the report, only the Orange and Santa Clara county district attorneys offices have a policy that requires maintaining a central file of all data about informants. 

Other commission recommendations for district attorney's offices across the state include:

•  Adopt a written policy requiring a supervisor's approval for using in-custody informant testimony. 

•  Maintain a central file preserving all records on in-custody informants.

•  Record all interviews with in-custody informants.

The commission's recommendations were unanimously approved, said Santa Clara University law professor Gerald Uelmen, the commission's executive director. 

In addition to Van de Kamp, the members include California Atty. Gen. Bill Lockyer, Los Angeles County Sheriff Lee Baca, Los Angeles Police Chief William J. Bratton, three district attorneys, three public defenders, the attorney who heads the state's habeas corpus resource center, two attorneys in private practice, two law professors, a former judge, a rabbi and a real estate developer.



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