Supreme Court Preview, Part III: Should Prosecutors Get Absolute Immunity When They Fail to Respect a Defendant’s Civil Rights?

Below is the third of four short previews of important cases set to be argued before the Supreme Court in the upcoming days. For more analysis of the Supreme Court, please see the first and second previews, which address Wyeth v. Levine and FCC v. Fox News Television Stations, Inc.


Van de Kamp v. Goldstein (Wednesday, Nov. 5)

Written by Elizabeth Wydra, Chief Counsel of Constitutional Accountability Center

Tomorrow morning, the Supreme Court will hear oral argument in Van de Kamp v. Goldstein, an important civil rights case brought by a man who spent 24 years in prison after he was wrongfully convicted of murder based on the testimony of a self-interested jailhouse informant. Despite this inexcusable injustice, the Court risks getting so mired in its tangled, deeply flawed immunity jurisprudence that it could lose sight of the real issue in the case: whether our civil rights laws protect the ability of victims of government misconduct to take their cases before the courts and hold powerful prosecutors accountable for violations of fundamental rights.

The unfortunate story of Goldstein’s wrongful conviction is undisputed. Thomas Lee Goldstein, then a college student and a former Marine, was convicted of murder in 1979. Much like the conviction Troy Davis is fighting from death row, Goldstein’s conviction was based not on any physical evidence, but rather on the testimony of witnesses. One of the two witnesses against Goldstein recanted his testimony two years later. The second witness, appropriately named Edward Fink, was a heroin addict with a long rap sheet who had a record of lying as a jailhouse informant. At Goldstein’s trial, Fink asserted that, after just one night as cell mates, Goldstein confessed the murder to him; Fink also falsely testified that he was receiving no benefit or leniency in exchange for his testimony. While Supreme Court case law requires a trial prosecutor to inform a criminal defendant when a jailhouse informant is receiving a benefit in exchange for testimony, the trial prosecutor in Goldstein’s case was unaware of the deal the District Attorney’s had given Fink because the senior officials in the D.A.’s office had failed to set up a system to manage and share this crucial information.

Goldstein maintained his innocence and fought his conviction. In 2004, after Goldstein had the opportunity in a habeas proceeding to present evidence that Fink had received benefits in return for his perjured testimony, Goldstein’s conviction was overturned and he was freed.

Goldstein then sued the District Attorney’s office under Section 1983, an important Reconstruction-era civil rights statute, alleging that senior district attorneys failed to meet their constitutional obligation to establish procedures that ensure exculpatory information is disclosed to criminal defendants. The prosecutors responded in Van De Kamp by asserting that they are absolutely immune from suit under the Supreme Court’s 1976 decision in Imbler v. Pachtman, which first recognized absolute prosecutorial immunity.

While Imbler remains on the books, its reasoning has come under scathing criticism from legal scholars who have established that there is no historical or textual support for the category of immunity the case created. Earlier this year, CAC submitted an amicus brief in support of Goldstein, asking the Court to overturn its decision in Imbler. As CAC has argued, absolute prosecutorial immunity insulates from liability even the most flagrant violations of the Constitution, which goes against the Reconstruction Congress’s intent to protect civil rights against wrongful state action, as evidenced by the enactment of Section 1983 of the Civil Rights Act and the Reconstruction Amendments. As scholarship has shown, there is no historical support, either in the common law or the legislative history of Section 1983, for granting prosecutors absolute immunity, as opposed to the qualified immunity most government officials enjoy. To the contrary, the purpose of the Civil Rights Act was to strengthen government accountability for rights violations, not to insulate state actors from court challenges.

Unfortunately, the Court may be able to sidestep the fundamental question of whether absolute prosecutorial immunity is legitimate under Section 1983, and whether Imbler should be overturned. Although Imbler established a rule of absolute prosecutorial immunity, the Court has not always adhered to that absolute line. In some circumstances—e.g., when prosecutors are deemed to be acting as investigators or administrators—they receive only the lesser benefit of qualified immunity. Imbler and its progeny have thus sown confusion in the area of prosecutorial immunity, drawing lines that make no sense: prosecutors are absolutely immune from violating defendants’ constitutional rights, except when they are not.

As a result of the Court’s post-Imbler jurisprudence, the parties’ briefs before the Court in the Goldstein case center on the question of whether managing information about jailhouse informants is an administrative task for the D.A., or a task intrinsic to a senior prosecutor’s role as judicial advocate. Accordingly, we expect that the Los Angeles County D.A.s will argue on Wednesday that managing (or not, in this case) information about the testimony of and benefits given to jailhouse informants is inherently a judicial function and that absolute immunity therefore applies; in contrast, Goldstein will argue that the failure to establish an office-wide information sharing system regarding jailhouse informants like Eddie Fink was an administrative failure by senior D.A.s.

The widespread problem of flawed testimony by self-interested jailhouse informants is well-documented: according to the Innocence Project, 15% of wrongful convictions that have been overturned after post-conviction DNA testing were caused in part by false testimony of jailhouse informants. Full disclosure of deals made between prosecutors and informants is crucial to defending against possible false testimony—and prosecutors have a constitutional duty to share this information under the 1972 Supreme Court ruling in Giglio v. United States. In Los Angeles, top-level administrators in the District Attorney’s Office made the decision not to create even a rudimentary system to inform prosecutors about deals made with informants. Given this systemic problem, Goldstein has a solid argument to make to the Court that remedying the inherent biases of “snitch” testimony was an organizational imperative — a basic administrative function of the D.A.’s office not a prosecutorial judgment call.

If the Court is sympathetic to Goldstein’s argument and finds that the District Attorneys’ conduct was administrative, then absolute immunity will not apply at all, and the Court will be able to sidestep the critical question of the soundness of Imbler. But a correct reading of relevant text and history demonstrates that a debate over whether the prosecutors’ conduct was “administrative” is the wrong debate for the Justices to have. What the Justices should be considering is the already shaky foundation of the absolute immunity doctrine. The Court should use this case to overturn Imbler and return to the principles underlying the Civil Rights Act: that state actors may not violate willfully civil rights and, if they do, the federal courts will stand ready to remedy the violations.