Commentary & Opinion
3:35 pm
Tue September 25, 2012

Stephen Gottlieb: Supreme Court Protects Prosecutorial Misconduct That Threatens the Innocent

As you think about whom you’ll vote for, let me tell you about two decisions of the Roberts Court where the Court sprang to the defense of prosecutors whose denials of constitutional protections had put innocent men in prison for decades.

In Van de Kamp v. Goldstein,[i] prosecutors complained to the Supreme Court that they were being held liable in damages for denying a man due process and putting him in prison. Here is how counsel for Goldstein described what happened:

Thomas Goldstein … spent a quarter of a century in prison for a murder he did not commit…. At trial, a jailhouse informant falsely testified that Mr. Goldstein confessed the crime to him and falsely swore that the District Attorney's Office had promised him nothing in return for his testimony.

The prosecutor was supposed to turn over information about anything promised to a witness in exchange for testimony. That never came out at trial because the men who ran the District Attorney's Office made sure that it would not. That was in direct violation of U.S. Supreme Court decisions dating back to the 1960s and 1970s to turn over exculpatory information, specifically including information about deals with prosecution witnesses that have the earmarks of bribery,[ii] a disclosure obligation that the office should have obeyed.[iii]

Although the Court didn’t mention it, the prosecutors’ office had been the subject of a grand jury investigation:

a decade after Mr. Goldstein's trial … the jailhouse informant scandal broke. … [A] Los Angeles County civil grand jury condemned Petitioners' dereliction of duty in a scathing report…. The grand jury documented how the Los Angeles District Attorney's Office and various police departments within its jurisdiction routinely coached jailhouse informants to fabricate confessions from criminal defendants….

The deliberate fabrication of evidence began well before Mr. Goldstein's arrest. The grand jury

Condemn[ed] management's behavior overall as a "deliberate and informed declination to take action necessary to curtail the misuse of jail house informant testimony."[iv]

But the Supreme Court under Chief Justice Roberts, a Bush appointee, saw no reason why the men should be liable for putting innocent men in prison for decades.

Following the Van de Kamp decision, another man convicted of a crime he did not commit tried to find another way to convince the Court to protect the public from abusive prosecutors. In Connick v. Thompson, Justice Thomas, appointed by the senior Bush, described the prosecutors’ behavior as “flagrant – and quite possibly intentional – misconduct ….”[v] But Thomas and the Court saw no reason why those prosecutors should be responsible for their misbehavior.

Justice Ginsburg, a Clinton appointee, amplified what had happened in her dissent:

… Throughout the … proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. [One] could reasonably conclude that inattention to [their constitutional duty] was standard operating procedure at the District Attorney's Office.[vi]

But for the Court, there was insufficient basis for relief. Thompson spent eighteen years in prison, fourteen on death row, for a crime he did not commit. The prosecutors’ only contribution was to conceal the evidence that would have acquitted him. But they were excused by the Court.

This Supreme Court has left few protections for the innocent intact. I want to see a better Court, an Obama Court, replace the travesty that now reigns in Washington.


[i]Van de Kamp v. Goldstein, 555 U.S. 335 (2009).

[ii]See United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998). The decision was reversed by the full Tenth Circuit essentially because the criminal “justice” system had come to rely on such bribes and the full Court was unwilling to stop the practice, see 165 F.3d 1297 (10th Cir. 1999).

[iii]See Giglio v. United States, 405 U.S. 150, 154 (1972); Brady v. Maryland, 373 U.S. 83, 87 (1963).

[iv]Brief of Appellee-Respondent in Van de Kamp v. Goldstein, 2007 U.S. Briefs 854; 2008 U.S. S. Ct. Briefs LEXIS 760 at *5 (citations omitted).

[v]Connick v. Thompson, 131 S. Ct. 1350, 1358 n.5 (2011)

[vi]Connick v. Thompson, 131 S. Ct. at 1370 (Ginsburg, J., dissenting).

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran. 

The views expressed by commentators are solely those of the authors, and do not necessarily reflect the views of this station or its management.

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