Whether supervising prosecutors can claim absolute immunity from civil law suits that allege their failure to establish policies guaranteeing criminal defendants’ constitutional rights, or whether such actions are “administrative” in nature and therefore only eligible for qualified immunity.
After being wrongfully convicted of murder based on the perjury of a jailhouse informant, Thomas Lee Goldstein brought a Section 1983 suit against John Van de Kamp and Curt Livesay, the chief prosecutors at the Los Angeles County District Attorney’s Office. Goldstein alleges that the prosecutors failed to establish a system to share information about benefits given to informants, with the result that the prosecutor who tried Goldstein did not have information on the informant and consequently did not inform Goldstein, as is constitutionally required. Van de Kamp and Livesay claimed absolute immunity from civil suit, based on the Supreme Court’s decision in Imbler v. Pachtman. The Ninth Circuit, however, held that since their alleged failures were administrative, and not prosecutorial in nature, Van de Kamp and Livesay were not entitled to absolute immunity. In further defining the boundaries of absolute immunity, the Supreme Court’s decision will affect the amount of protection from personal liability prosecutors can have at all levels of government, as well as affect the potential remedies available to criminal defendants who were wrongfully convicted based on prosecutorial misconduct.
Questions as Framed for the Court by the Parties
1) Where absolute immunity shields an individual prosecutor’s decisions regarding the disclosure of informant information in compliance with Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) made in the course of preparing for the initiation of judicial proceedings or trial in any individual prosecution, may a plaintiff circumvent that immunity by suing one or more supervising prosecutors for purportedly improperly training, supervising, or setting policy with regard to the disclosure of such informant information for all cases prosecuted by his or her agency?
2) Are the decisions of a supervising prosecutor as chief advocate in directing policy concerning, and overseeing training and supervision of, individual prosecutors’ compliance with Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) in the course of preparing for the initiation of judicial proceedings or trial for all cases prosecuted by his or her agency, actions which are “intimately associated with the judicial phase of the criminal process” and hence shielded from liability under Imbler v. Pachtman, 424 U.S. 409, 430 (1976)?
Thomas Lee Goldstein, a twenty-five-year-old engineering student and Marine Corps veteran, was arrested in 1979 for a Long Beach, CA shooting. See Brief for Respondent at 2. He was convicted and sentenced to life in prison based on the testimony of an eyewitness (who later admitted that he only identified Goldstein as the murderer because of police intimidation), and the testimony of a jailhouse informant by the name of Eddie Fink, who claimed that Goldstein had confessed to the murder in jail. See Id. at 2–4. At the preliminary hearing and at trial, Fink testified under oath that he had not received any benefits in exchange for his testimony against Goldstein or for any testimony in the past. See Id. at 3.
In fact, however, the Los Angeles District Attorney’s Office had promised Fink a reduced sentence on a pending charge in exchange for his testimony at Goldstein’s trial. See Id. at 3–4. Fink had also received such benefits from the prosecution in numerous cases over the course of a decade. Furthermore, Goldstein alleges that Fink was intentionally placed in Goldstein’s jail cell by the police, who knew that Fink, a repeat felon and drug addict, had “an uncanny knack for extracting confessions from cellmates.” Id. at 3. However, even though the LA District Attorney’s Office knew of Fink’s reduced-sentence deals, the truth was not known to the Deputy District Attorney who personally prosecuted Goldstein’s case, and this information consequently was not disclosed to Goldstein or his attorney, as is required under Brady v. Maryland. 373 U.S. 83 (1963).
After 24 years in a maximum-security prison, Mr. Goldstein was finally released on the ground that he was wrongly convicted by Fink’s perjury. See Brief for Respondent at 6. He then brought suit against John Van de Kamp, the Los Angeles County District Attorney, and Curt Livesay, his Chief Deputy, along with the City of Long Beach, the County of Los Angeles, and individual police officers and detectives. See Brief of Petitioners at 4–5. In his complaint, Goldstein alleged that Van de Kamp and Livesay “deliberately decided” not to create an internal information system for the trial prosecutors to learn whether their witnesses were jailhouse informants who were receiving benefits, and that they did so in violation of their constitutional obligation to establish procedures “‘to insure communications of all relevant information on each case to every lawyer’ in the office.” Brief for Respondent at 7–8, quoting Giglio v. US, 405 U.S. 150, 154 (1972).
Van de Kamp and Livesay moved to dismiss the complaint against them, claiming absolute prosecutorial immunity under Imbler v.Pachtman, which held that a prosecutor, acting within the scope of his duties in initiating and pursuing a criminal conviction, is absolutely immune from civil suit under 42 U.S.C. § 1983. See Brief for Respondent at 8; 424 U.S. 409, 431 (1976). The District Court for the Central District of California denied their motion to dismiss, finding that the alleged failures were “administrative” in nature, rather than “prosecutorial,” and were therefore not entitled to the protections of absolute immunity. Goldstein v. City of Long Beach, 481 F.3d 1170, 1172 (9th Cir. 2007). Van de Kamp and Livesay then filed an interlocutory appeal with the Ninth Circuit, which affirmed the District Court’s opinion. See Id. at 1176. The Supreme Court granted a writ of certiorari on April 14, 2008, to address whether the policy-making decisions of head prosecutors are shielded from liability by absolute immunity. See 128 S.Ct. 1872 (April 14, 2008).
Is the challenged policy prosecutorial or administrative in nature?
Absolute immunity is “an absolute bar to liability,” as opposed to qualified immunity, which protects government officials from civil suits only when their alleged conduct does “not violate a constitutional right or violates a constitutional right that was not ‘clearly established.’” Goldstein, 481 F.3d at 1173, quoting Saucier v. Katz, 533 U.S. 194, 201–02 (2001). Only absolute immunity is at issue here, since Van de Kamp and Livesay did not claim qualified immunity in the district court. See Goldstein, 481 F.3d at 1172–73.
The case turns on the Supreme Court’s decision in Imbler v. Pachtman, and how it was interpreted in the cases that followed. 424 U.S. 409 (1976). Imbler established that prosecutors could claim absolute immunity from §1983 civil suits when the alleged misconduct is “intimately associated with the judicial phase of the criminal process.” Id. at 430. In Imbler, the prosecutor had been accused of knowingly using false testimony and suppressing exculpatory evidence, actions which were clearly part of “initiating a prosecution” and “presenting the State’s case.” Id. at 430. The Imbler holding was narrow and the Court did not decide whether a prosecutor acting as an administrator or investigator should likewise receive absolute immunity. See Id. at 430. However, subsequent decisions have confirmed the existence of this distinction: “A prosecutor’s administrative duties and those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); see also Burns v. Reed, 500 U.S. 478 (1991), Kalina v. Fletcher, 522 U.S. 188 (1997).
Petitioners Van de Kamp and Livesay argue that Goldstein alleges failures that are necessarily prosecutorial in nature, and therefore absolute immunity should apply. See Brief of Petitioners at 22. Goldstein claims he was wrongfully accused of murder based on the false testimony of an informant who received a reduced sentence in exchange. See Brief for Respondent at 3. Under the landmark case of Brady v. Maryland, the prosecution is required to disclose to a criminal defendant all evidence that is material to guilt or to punishment. 373 U.S. 83, 87 (1963). Such exculpatory evidence includes information affecting the credibility of a witness, such as the fact that the government promised a witness that he would not be prosecuted or that he would receive a lesser sentence in exchange for his testimony. See Giglio v. US, 405 U.S. 150, 154 (1972). It is well-established under Imbler and progeny that an individual prosecutor will receive absolute immunity from a suit alleging Brady or Giglio violations. See Brief of Petitioners at 26. Van de Kamp and Livesay claim that the Ninth Circuit gave no “principled basis” for distinguishing between the Brady failures of an individual prosecutor, and their alleged failure here as supervising prosecutors to ensure, through training and supervision, that individual prosecutors are complying with these obligations. Id. at 26. They argue that the “duty to disclose exculpatory information under Brady and Giglio arises only in the context of prosecution,” and consequently, that the claims are not administrative but are prosecutorial in nature. Id.
However, Goldstein argues that Van de Kamp and Livesay are mischaracterizing his complaint, as he is “not trying to hold Petitioners vicariously liable for the trial tactics of the deputy who prosecuted him.” Brief for Respondent at 16. He claims he is not blaming them for inadequate training or supervision of trial attorneys. Id. at 10, 16. In fact, Goldstein concedes that the trial prosecutor did not knowingly or willingly violate Brady, since as far as the trial prosecutor knew, “there was no information to disclose, and therefore no decision to make.” Id. at 10. Instead, Goldstein claims, the allegations are focused on the supervising prosecutors’ administrative failure to establish an internal information system for tracking deals made with jailhouse informants, a failure which resulted in “an information vacuum that prevented line prosecutors learning the truth about informants.” Id. at 9–10.
In 1972, the Supreme Court recognized that holding the entire prosecution office responsible for promises made by one attorney may be burdensome to larger offices, but stated that “procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it.” Giglio, 405 U.S. at 154. Goldstein claims that the Los Angeles County District Attorney’s Office knew of this obligation, as well as that police officers and prosecutors relied on “testimony from career felons who, like Fink, trafficked in false jailhouse confessions in return for sentence reductions,” and that prosecutors even coached such informants on their false testimony. Brief for Respondent at 5. Goldstein blames Van de Kamp and Livesay for having this knowledge and yet failing to develop a system to track benefits given to informants. See Id. Indeed, Goldstein claims that they deliberately decided not to establish such a system, “because they preferred a system guaranteed to ‘prevent’ trial deputies from learning exculpatory information that they would have to disclose to the defense.” Id. Thus, Goldstein argues, the alleged misconduct of Van de Kamp and Livesay is administrative in nature and not intimately associated with a judicial proceeding. See Id.
Policy Concerns and Alternative Options
The Supreme Court’s decision in Imbler was based, in part, on the same public policy concerns underlying the immunity granted to prosecutors at common law: fear that the threat of a tort claim would “deter prosecutors in the independent and vigorous performance of their duties.” Brief of Petitioners at 14. Absolute immunity for trial prosecutors is intended to prevent the “concrete, pervasive threat of vexatious and retaliatory suits.” Id. at 33–34. In the instant case, the Van de Kamp and Livesay argue that if the Supreme Court affirms the Ninth Circuit’s opinion below and denies the application of absolute immunity to Van de Kamp and Livesay, then these same policy concerns would increase exponentially, since “chief advocates, such as a District Attorney, Attorney General, or United States Attorney,” are in charge of offices that prosecute hundreds or thousands of cases every year. Id. at 33–34. If supervising prosecutors cannot claim absolute immunity, then criminal defendants like Goldstein “will simply retool their claims and assert that the alleged prosecutorial misconduct was the result of improper policy or training.” Id. at 34.
Goldstein, however, argues that the concern about a flood of lawsuits is unwarranted. See Brief for Respondent at 48. He points out that a criminal defendant could not bring a suit similar to his own unless “the stars align” in a very specific fact pattern: a criminal defendant must be convicted at trial, based on the testimony of an informant whose credibility cannot be called into doubt because his informant status is not disclosed to the defense, who does not know this information because the chief prosecutor has not set up a system to get the relevant Brady information to the trial prosecutor (who should then have passed it on to the defense). See Id. at 48. In addition, Goldstein notes that the concerns about a flood of litigation did not outweigh the policy considerations in other post-Imbler cases, yet “the predicted litigation frenzy never materialized.” Id. at 47; see also Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); Burns v. Reed, 500 U.S. 478 (1991).
Both parties argue that there are alternative options available. Goldstein points out that even if absolute immunity is not applicable to chief prosecutors for the wrongs alleged in this complaint, qualified immunity is still available. See Brief for Respondent at 46–47. As the Supreme Court has stated, qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). However, Van de Kamp and Livesay argue that qualified immunity does not provide prosecutors with sufficient protection, since it still requires some type of initial discovery process, along with “an intensive factual rehashing of the underlying proceedings.” Brief of Petitioners at 34.
Furthermore, Van de Kamp and Livesay claim that there are alternative methods of keeping prosecutors in check, even if they are granted absolute immunity from §1983 civil lawsuits. See Brief of Petitioners at 15–16. They contend that prosecutors are still subject to criminal charges and “professional discipline” by peer associations. Id. at 16, quoting Imbler, 424 U.S. 429. Moreover, Van de Kamp and Livesay argue, chief prosecutors are also, at times, in elected positions and so are “accountable to their voters,” which adds “another level of scrutiny and accountability.” Brief of Petitioners at 36. However, Goldstein argues that prosecutors rarely are disbarred or held criminally liable for their misconduct, and voters are not likely to “punish” an overzealous prosecutor at the polls. Brief for Respondent at 54-55. In short, Van de Kamp and Livesay claim that qualified immunity does not offer enough protection for prosecutors, while Goldstein argues that alternative checks on prosecutors do not offer enough protection for defendants.
In this case the Supreme Court will address whether an individual, Thomas Lee Goldstein, who had been wrongly convicted of a crime, is allowed to bring suit against head prosecutors John Van de Kamp and Curt Livesay for failing to establish internal information systems which would ensure the constitutional rights of criminal defendants. Van de Kamp and Livesay argue that they should be entitled to absolute immunity, since the wrongs of which Goldstein accuses them were prosecutorial in nature. See Brief of Petitioners at 10–12. Goldstein, however, argues that the alleged failures of Van de Kamp and Livesay were actually administrative, not prosecutorial, and so absolute immunity should not apply. See Brief for Respondent at 9–11. Besides its impact on the individual parties in this particular lawsuit, the Court’s decision will further define the boundaries of absolute immunity afforded prosecutors in Imbler v. Pachtman. 424 U.S. 409 (1976).
Van de Kamp and Livesay claim that if absolute immunity is not applicable in this case, there will be a flood of retaliatory litigation directed at supervisory prosecutors by criminal defendants who were unable to bring suit against the lower, trial-level prosecutors. See Brief of Petitioners at 33–34. Amici argue that this potential supervisory liability could affect hundreds of prosecutors around the nation and is a concern that has generated several amicus briefs on behalf of public officials and district attorney offices at city, county, state, and federal levels. See, inter alia, Brief for Amici Curiae Fifty States in Support of Petitionersat 1–2. In addition, amici United States argues that allowing Section 1983 actions to be brought against supervising prosecutors will create a significant burden on U.S. Attorney General offices during the discovery phase, even if the case does not actually proceed to trial. See Brief for Amicus Curiae United States in Support of Petitionersat 28–29. However, as amici Innocence Network points out, the concern about a “flood of litigation seems not to be matched by an admission that that there has been a ‘flood’ of wrongful convictions. And if there has been no flood of wrongful convictions, there certainly can be no flood of attendant civil suits under § 1983.” Brief for Amici Curiae Innocence Network and Innocence Project in Support of Respondentat 33.
The National District Attorneys Association (“NDAA”), in supporting Van de Kamp and Livesay, argue that affirming the Ninth Circuit’s opinion would lead to incongruous results. See Brief for Amici Curiae National District Attorneys Association, et al., in Support of Petitionersat 6. The NDAA contends that individual trial prosecutors who intentionally violate a criminal defendant’s constitutional rights would be covered by absolute immunity, but supervising prosecutors would not, even though the latter prosecutors’ conduct is more likely to be negligent, rather than intentional. See Id. at 17. In addition, as the New York State District Attorneys Association argues, many civil claims challenge conduct that occurred many years ago, when a specific constitutional right may not have been so clear. See Brief for Amicus Curiae New York State District Attorneys Association in Support of Petitioners at 24. “What a prosecutor failed to train on and set policy for twenty years ago may, from today’s vantage point, seem far more shocking.” Id.
Furthermore, many of the amici contend that a decision in favor of Goldstein could have potential chilling effects. Amici City of New York is concerned that attorneys will no longer want to serve the government as independent prosecutors if they could be liable for monetary damages. See Brief for Amicus Curiae City of New York in Support of Petitionersat 7. Amici Los Angeles County also claims that “the potential for harassing litigation” could reduce or eliminate training programs for prosecutors, since prosecutors would decline to train new attorneys out of fear of liability. See Brief for Amicus Curiae Los Angeles County District Attorney in Support of Petitioners at 18–19. Most importantly, amici argue, denying absolute immunity to prosecutors could have an unintended ironic effect. See Brief for Amicus Curiae New York State District Attorneys Association (“NYSDAA”) in Support of Petitioners at 7. Amici NYSDAA explains that prosecutors have a constitutional duty to disclose to the court and to the defendant “all significant evidence suggestive of innocence or mitigation,” both during a trial and after conviction. See Id. However, NYSDAA argues, fear of a personal lawsuit might “dampen the exercise” of that duty, and the exculpatory information may never be disclosed to a convicted defendant. Id. at 7.
However, Goldstein’s amici rebut many of the policy arguments put forth by Van de Kamp and Livesay and their amici. See Brief for Amici Curiae American Civil Liberties Union and National Association of Criminal Defense Lawyersat 7. Amici claim that a decision in favor of Van de Kamp and Livesay would increase the potential for wrongful murder convictions, since informants are pervasive in the criminal justice system but have very little judicial regulation. See Id. at 26-27. They cite statistics indicating that almost 50% of wrongful murder convictions involved perjury by “a jailhouse snitch or another witness who stood to gain from the false testimony.” Id. at 11, quoting Samuel R. Gross, et al., Exonerations in the United States 1989 Through 2003.
Goldstein’s amici further argue that the alternative sanctions proposed by Van de Kamp and Livesay’s amici “leave little hope that they might deter a prosecutor otherwise disposed to abuse his authority.” Brief for Amicus Curiae Constitutional Accountability Center in Support of Respondentat 23. Amici claim that voters are unlikely to hold chief prosecutors accountable, since the media and the public are usually uninterested in constitutional violations in an individual defendant’s case. See Brief for Amici Curiae the Innocence Network and the Innocence Project in Support of Respondentat 29. They also point out that prosecutors are very rarely referred to a bar association for disciplinary measures because of misconduct. See Id. at 27. In addition, amici Constitutional Accountability Center argues that the potential injuries caused by prosecutorial misconduct (including death sentences for innocent defendants) are much more extreme than the potential injuries caused by other government officials, such as school board members or deputy marshals, who are only granted qualified immunity. See Brief for Amicus Curiae Constitutional Accountability Center in Support of Respondentat 24.
The Supreme Court’s decision in Van de Kamp v. Goldstein will determine whether a criminal defendant can circumvent the immunity granted to trial prosecutors, and instead bring suit against their supervisors for failing to ensure that defendants’ constitutional rights were not violated. The case’s outcome will further define the boundaries of absolute immunity, as well as clarify the distinction between “administrative” functions of prosecutors and those “intimately associated with the judicial phase of the criminal process.” A decision for Van de Kamp and Livesay could solidify supervisory prosecutors’ protection from personal liability and monetary damages, while a decision for Goldstein could give wrongfully accused and convicted defendants a certain measure of redress against dishonest and unconstitutional actions.
Written by: Katie Higgins
Edited by: Hana Bae