In the case of Goldstein v. The City of Long Beach, the Ninth Cricuit Court of Appeals held “that the County of Los Angeles could be liable pursuant to 42 U.S.C. § 1983 because the district attorney acted as final policymaker for the County when adopting and implementing internal policies and procedures related to the use of jailhouse informants.”
The plaintiff in this case, Thomas Goldstein, spent 24 years in prison after being convicted for murder based largely upon the perjured testimony of unreliable jailhouse informant Edward Fink. Mr. Goldstein was released after a district court determined that Mr. Fink “had lied and that it might have made a difference if the prosecution had told plaintiff’s lawyer that Fink had received prior rewards in return for favorable testimony.”
Originally, in 1983, the Supreme Court held that the Los Angeles County District Attorney and Chief Deputy District Attorney were absolutely immune from plaintiff’s claims that the prosecution had “failed to disclose impeachment material due to a failure to properly train prosecutors, failed to properly supervise prosecutors, and failed to establish an information system containing potential impeachment material about informants.”
However, the Ninth Circuit, overturning the district court, “held that the Los Angeles County District Attorney represents the County when establishing administrative policies and training related to the general operation of the district attorney’s office, including the establishment of an index containing information regarding the use of jailhouse informants.”
Judge Stephen Reinhardt concurs with this opinion, but wrote separately “to emphasize the problems related to the eponymous and notorious Edward Fink and to explain why he found unpersuasive the California Supreme Court’s reasoning in Pitts v. County of Kern, 949 P.2d 920, 923 (Cal. 1998) (holding that the district attorney represents the state, not the county, when preparing to prosecute and when prosecuting crimes, and when establishing policy and training employees in these areas).”
The court writes that Mr. Fink was a heroin addict and convicted felon who had “previously received reduced sentences by testifying in other cases and received a reduced sentence in exchange for his testimony against Goldstein.”
The court writes, “Some prosecutors in the Los Angeles County District Attorney’s office allegedly knew about Fink’s history, but failed to inform the prosecutors trying Goldstein’s case or Goldstein’s counsel that Fink had testified before or that he received a benefit for testifying against Goldstein, and Fink lied on the stand when he was asked about previous assistance given or benefits received.”
Mr. Goldstein was convicted “almost solely” on the basis of Mr. Fink’s testimony.
As the California Supreme Court wrote of the evidence against Mr. Goldstein, in 1979 he was an engineering student and Marine Corps veteran with no criminal history when he became a suspect “after an eyewitness to an unrelated shooting saw the gunman enter Goldstein’s apartment building. No witness or forensic evidence connected Goldstein with the murder victim, but Long Beach police detectives showed Goldstein’s photograph, among others, to Loran Campbell, an eyewitness to the homicide. Campbell did not recognize anyone in the photo lineup, and Goldstein did not match Campbell’s description of the suspect.”
“Goldstein was arrested and placed in a jail cell with Edward Floyd Fink, a heroin addict and convicted felon,” they write. “At Goldstein’s trial, Fink testified that Goldstein said he was in jail because he shot a man in a dispute over money.”
In 1998, Mr. Goldstein filed a habeas petition and at an evidentiary hearing “the district court agreed that Fink had lied and that it might have made a difference “if the prosecution had told Goldstein’s lawyer that Fink had received prior rewards in return for favorable testimony.”
The state was ordered to grant Mr. Goldstein a new trial or release him, and Mr. Goldstein was released after serving 24 years of his sentence.
In 2009, the United States Supreme Court listened to a suit and determined whether the Los Angeles County district attorney and chief deputy district attorney had absolute immunity from suit for Goldstein’s claims.
While the Supreme Court “agree[d] with Goldstein that, in making these claims, he attack[ed] the office’s administrative procedures,” it concluded that “[t]hose claims focus upon a certain kind of administrative obligation – a kind that itself is directly connected with the conduct of a trial.”
The court ruled that both the DA and Chief Deputy DA had absolute immunity from “claims that the prosecution failed to disclose impeachment material due to a failure to properly train prosecutors, failed to properly supervise prosecutors, and failed to establish an information system containing potential impeachment material about informants.”
On remand, the district court entered judgment in favor of LA County DA John Van de Kamp and his chief deputy Curt Livesay. A key to that ruling was a determination that the DA acts on behalf of the state rather than the county, in setting policy related to jailhouse informants.
As the court writes, “The viability of Goldstein’s claim turns on whether the Los Angeles District Attorney acted here as a policymaker for the state or for the county.”
The court here determines, “Based on our analysis of the relevant California constitutional and statutory provisions, we conclude that California district attorneys act as local policymakers when adopting and implementing internal policies and procedures related to the use of jailhouse informants.”
They add, “Though the Attorney General ‘shall have direct supervision over every district attorney and sheriff,’ the Attorney General’s control over the district attorney is quite limited: he or she is limited to requiring a district attorney to ‘make reports.’ “
The court notes, “If the Attorney General believes a district attorney is not adequately prosecuting crime, the Attorney General is not given the power to force a district attorney to act or adopt a particular policy, but instead may step in and ‘prosecute any violations of law’ himself or herself.”
The court, taking account all these factors, writes, “It is clear that the district attorney acts on behalf of the state when conducting prosecutions, but that the local administrative policies challenged by Goldstein are distinct from the prosecutorial act.”
In his concurring opinion, Judge Reinhardt notes the execution of Thomas Thompson on the basis of Mr. Fink’s testimony. Noting, “It is unlikely that Thompson was death-eligible for his part in the crime, if he was guilty at all of any offense.”
He writes, “At Thompson’s trial, the prosecutor committed prosecutorial misconduct that constituted a constitutional violation and required reversal. Additionally, Thompson’s lawyer provided woefully inadequate representation, which constituted another constitutional violation that required reversal.”
Judge Reinhardt notes, “Despite a request to reverse Thompson’s conviction by seven California prosecutors with extensive death penalty experience, including the author of California’s death penalty statute, the Supreme Court refused to consider Fink’s perjured testimony or any of the constitutional violations, on the dubious ground that our court abused its discretion in recalling the mandate, on a basis that the Court had never before recognized.”
Judge Reinhardt notes that while Mr. Thompson was executed as the result of Mr. Fink’s perjury, the innocent Mr. Goldstein escaped that fate.
Our observant readers will recall that the Thomas Thompson case became the basis for Don Heller, who drafted the state’s death penalty law, to change his stance.
Last year at a press conference, Mr. Heller stated he believed that California has already executed one innocent person.
In response to a follow up question by the Vanguard, Mr. Heller would later state he believes the innocent person executed to have been Tommy Thompson.
“I believe that Tommy Thompson was innocent of the rape-murder that he was convicted of and sentenced to death,” Mr. Heller said. “Thompson’s case relied almost exclusively on the testimony of an informant, aptly named Mr. Fink.”
“Mr. Fink was a professional informant, he had actually put several people on death row by people confessing to him in jail and it just so happened that Mr. Fink always benefitted from this confession that was made to him,” Mr. Heller continued.
“I think that Tommy Thompson was innocent,” he said. “He was executed under the law I wrote and that has stayed with me since 1998 that I participated in the execution of an innocent man.”
Mr. Goldstein has avoided that fate and if the courts allow this decision to stand, it might now be possible to hold prosecutors accountable for withholding critical evidence about jailhouse informants.
In 2011, California changed state law to make it more difficult for jailhouse informants to play the role that Mr. Fink did.
Testimony by jailhouse informants is no longer sufficient to convict criminal defendants, in California legislation signed in November 2011 by Governor Jerry Brown.
SB 687 by Senator Mark Leno applies to cases in which an inmate, often in exchange for leniency, testifies that a cellmate confessed to a crime. The bill requires prosecutors to corroborate that testimony.
That bill would effectively have saved the life of Mr. Thompson and avoided the 24-year sentence of Mr. Goldstein.
—David M. Greenwald reporting
Photo caption: Don Heller speaks in March 2012 press conference explaining his change on the death penalty and the case of Thomas Thompson who was executed solely on perjured testimony from Mr. Fink.
[quote]… the perjured testimony of unreliable jailhouse informant Edward [b]Fink[/b][/quote] Gotta love the irony…
I believe it’s a pseudonym, but yes, ironic.
David – that was his actual name.
Sorry, I mistook the word eponymous.