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Conference Call summarizes the roughly 15 percent of all nonpauper petitions that are the most likely candidates for certiorari. It is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of nonpauper petitions. The firms then prepare the summaries of the cases. If either firm is involved in a case mentioned in this column, that will be disclosed.
In 1980, a California jury convicted Thomas Lee Goldstein of killing his neighbor with a shotgun in a darkened alley. Central to the state’s case was the testimony of a heroin addict named Edward Fink, who — falsely — told jurors that Goldstein had confessed to the crime while the two shared a holding pen in a Long Beach, Calif., jail. As in the past, Fink, a longtime police informant, had been promised benefits in exchange for his testimony. But the existence of Fink’s current or previous deals was never relayed to the district attorney prosecuting the case — or, crucially, to Goldstein’s attorney. More than 20 years later, after federal judges ordered his release from prison, Goldstein, a former Marine, filed a civil rights suit against the former Los Angeles County District Attorney and his chief deputy, alleging they failed to create a database containing information on jailhouse informants, or to otherwise ensure deputy prosecutors were at least aware when witnesses had been promised benefits in exchange for their testimony. Rejecting the defendants’ claim of absolute prosecutorial immunity, the U.S. Court of Appeals for the 9th Circuit allowed the case to move forward. At their private conference on April 11, the justices will consider whether to accept the petition for certiorari. (The case is No. 07-854, Goldstein v. Van de Kamp.) For decades, the Supreme Court has recognized two types of immunity under 42 U.S.C. 1983, the statute under which Goldstein filed his civil rights suit. When sued for money damages, most public servants enjoy “qualified immunity,” meaning charges are automatically dismissed unless the alleged conduct violated clearly established constitutional rights. Meanwhile, a small subset of officers — including judges, legislators, and prosecutors — enjoy “absolute immunity” for all conduct taken while exercising their official, traditional duties. John Van de Kamp, the district attorney at the time of Goldstein’s trial and now of counsel at Dewey & LeBoeuf in Los Angeles, claimed absolute immunity (though not qualified immunity) from the suit. The district court denied the motion in March 2006, after determining the alleged conduct to be administrative rather than prosecutorial in nature. On appeal, a 9th Circuit panel unanimously affirmed. Citing the Supreme Court’s 1976 decision in Imbler v. Pachtman, the circuit panel found prosecutors only enjoy absolute immunity for conduct “intimately associated with the judicial phase of the criminal process.” As examples, the panel wrote that immunity would apply to decisions on whether to prosecute particular cases, but not to statements made during press conferences or alleged discrimination in personnel decisions. On balance, Judge Thelton Henderson, sitting by designation from the U.S. District Court for the Northern District of California, concluded that Goldstein’s allegations “bear a close connection only to how the District Attorney’s Office was managed, not to whether or how to prosecute a particular case.” In his petition for certiorari, Van de Kamp argues that by suing supervisors in the district attorney’s office, Goldstein sought only to circumvent the civil immunity traditionally afforded to line prosecutors. The petition, filed by Steven Renick of Los Angeles-based Manning & Marder, Kass, Ellrod, Ramirez, contends that allowing such suits will invite a “flood of lawsuits” by vengeful defendants. As opposed to rote administrative tasks, Renick maintains that locating and disseminating potentially exculpatory information falls within the type of core prosecutorial function traditionally afforded absolute immunity. Indeed, the petition notes, the Supreme Court’s decision in Imbler itself provided absolute immunity to a prosecutor alleged to have withheld exculpatory evidence from the defendant. Citing other federal courts of appeal, Renick notes the D.C. Circuit has extended absolute immunity to district attorneys against allegations related to the setting of general prosecutorial policies, as has the 7th Circuit against allegations of failure to train or supervise line attorneys. By contrast, under the 9th Circuit’s ruling, “virtually any claim that would otherwise be barred against a line prosecutor�can simply be restated as a claim against one or more supervising prosecutors,” the petition says. Opposing certiorari, Goldstein maintains the suit seeks to hold Van de Kamp accountable in his role as an administrator, not as prosecutor. The brief in opposition, filed by Marilyn Bednarski of Kaye, McLane, & Bednarski of Pasadena, Calif., contends the allegations involve Van de Kamp’s failure to ensure information on jailhouse informants was shared within the office, as opposed to with particular defendants. Far from requiring prosecutorial discretion, Bednarski argues, creating a system to share information involves nothing more than compiling objective facts on police informants. And far from enabling a flood of litigation, Bednardski argues, the ruling below applies only to a narrow class of plaintiffs who could establish a causal connection between their wrongful convictions and the failure of supervisory prosecutors to take certain administrative actions. Whereas line prosecutors themselves cannot face suit for withholding information from defendants, Bednarski cites cases from the 4th, 7th, and 11th Circuits rejecting qualified immunity for police officers who withheld such information from prosecutors in the first place. From a larger standpoint, Bednarski argues, prosecutorial immunity was meant not to shield all employees in prosecutors’ offices from any liability, but to serve as a narrow exception to civil rights laws used only when necessary to protect the judicial process itself. — Ben Winograd
Other cases up for review include the following: • 07-588, 07-589, 07-597, Entergy Corp. v. EPA; PSEG Fossil LLC v. Riverkeeper Inc.; Utility Water Act Group v. Riverkeeper (2nd Circuit) Whether the Clean Water Act permits the EPA to undergo a cost-benefit analysis in determining the most environmentally friendly technology at cooling water intake structures, and to regulate such structures at existing as well as new facilities. • 07-595, Sher v. Department of Veterans Affairs (1st Circuit) Whether government employees not granted immunity may be disciplined for invoking the 5th Amendment right against self-incrimination. • 07-785, Wallace v. United States (D.C. Court of Appeals) Whether, under the due process clause, a defendant who pleads guilty retains the right to appeal a pre-trial competency determination. • 07-798, 07-1005, Ali v. Mukasey; Gulati v. Mukasey (7th Circuit) Whether courts have jurisdiction to review decisions of immigration judges denying motions for a continuance. • 07-929, Rossi v. Joseph Chris Personnel Services (5th Circuit) Whether, and under what circumstances, a party loses its right to demand arbitration of a claim in which it has participated in litigation. • 07-1052, Quarterman v. Garcia (5th Circuit) Whether jury instructions in the defendant’s capital murder trial were sufficient under Abdul-Kabir v. Quarterman (2007).

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