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November 5, 2008 6:09 PM

Dewey Lawyer, Ex-AG Optimistic After His Day Before U.S. Supreme Court

Posted by Zach Lowe

John Van De Kamp, a former Los Angeles district attorney and state Attorney General of California, walked into the U.S. Supreme Court today hoping the justices would grant him absolute immunity from a lawsuit brought by a man wrongly convicted of murder under his watch.

"I thought to myself, 'This will be the only time in my life that I'll be a named party,'" laughs Van De Kamp, now of counsel at Dewey & LeBoeuf, where he's worked since losing a bid to be California's governor in 1990.

The case at hand touches on the degree of civil immunity prosecutors are entitled to. In general, courts have held that prosecutors cannot be held liable for decisions they make--no matter how poor--during the course of a specific case. But the wrongly accused murderer, Thomas Goldstein, argues that his case against Van De Kamp is different. Goldstein was convicted of murder in 1979 based on the testimony of a jailhouse snitch--testimony that turned out to be false. The informant, the aptly named Edward Fink, testified at the time that he was not receiving any favorable treatment on another case he was involved with in exchange for his testimony against Goldstein. That wasn't true, but Goldstein's prosecutor didn't know it because of miscommunication within Van De Kamp's office. Goldstein's conviction was overturned when Fink's lies were exposed.

Now Goldstein is suing Van De Kamp, claiming the former district attorney was responsible for making sure his prosecutors kept each other informed about any deals with informants. Ron Kaye, Goldstein's lawyer, claims absolute immunity doesn't apply to Van De Kamp, since he was not directly involved in the case. Kaye is a former federal public defender and one of the co-founders of Kaye, McLane & Bednarski. He took up Goldstein's civil suit in 2004.

Lower courts have ruled that Goldstein's suit can go forward; Van De Kamp and the other defendants, including his former deputy, successfully convinced the Supreme Court to take the rule on the issue.

Kaye brought in E. Joshua Rosenkranz, the head of Orrick, Herrington & Sutcliffe's appellate practice. (Rosenkranz, a Fab 50 Young Litigator in the January 2007 issue of The American Lawyer, was the founding director of New York University's Brennan Center for Justice.)

Rosenkranz referred questions to Kaye, who says the case is hugely important. "Civil liability is the only way to hold someone in (Van De Kamp's) position accountable," Kaye says.

Van De Kamp and his team at Manning & Marder, Kass, Ellrod, Ramirez say exposing supervisors to suits like Goldstein's would open the proverbial floodgates.

Kaye disagrees, saying the precedent would only apply in cases of exonerated criminals whose rights were violated at trial--a tiny group.

Van De Kamp thought the justices seemed to be leaning his way Wednesday. He says he was especially heartened when Justice Ruth Bader Ginsburg, not exactly the most likely justice to side with prosecutors, wondered how difficult it must have been for Van De Kamp to track informant records across dozens of offices in 1979, before the computer age.

"You never want to get too optimistic," Van De Kamp says. "But I think the justices had a very good understanding of the case."

Kaye says he's optimistic as well, and points to a question from Justice John Paul Stevens, who asked whether absolute immunity would apply to a mid-level bureaucrat charged only with overseeing a database of informants (it wouldn't).

"It's always hard to tell with the court," Kaye says. "They asked a lot of probing questions."

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