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The case, Van De Kamp v. Goldstein, stems from Thomas Lee Goldstein's 1980 conviction for murder, which was based largely on the testimony of a jailhouse informant.

The informant testified at trial that he had heard Goldstein confess to the murder. The informant also falsely testified that he was offered no reduced sentence in exchange for his testimony.

In 2004 Goldstein was released on a writ of habeas.

He sued the prosecutor and a police deputy for failing to ensure that information about the informant's deal was shared among prosecutors and given to the defense.

The defendants argued that they were protected from liability for conduct that took place in the course of the prosecution.

A U.S. District Court found that the defendants' duties were administrative and thus not protected by immunity, and the 9th Circuit agreed.

Impractical distinction?

Timothy T. Coates, a partner in the Los Angeles office of Greines, Martin, Stein & Richland, argued before the Court on behalf of the county officials.

He said that prosecuting a case involves decisions that must be made in and out of the courtroom. As a result, he argued that the lower courts' distinction between what constitutes administrative versus prosecutorial conduct was impractical.

"There is essentially no distinction between a chief advocate or supervising prosecutor implementing a policy directing that cases be handled in a particular manner and … a particular chief advocate or supervising advocate actually participating in the courtroom," Coates said. "Because of the size of the prosecutorial agencies, it's not feasible that a chief advocate or supervisor can be in a courtroom in every single case. But they can put their prosecutorial stamp on each case through … other means."

Justice John Paul Stevens used a hypothetical to question where the line should be drawn. "Supposing a prosecutor wanted to develop a policy which [would] create a bifurcated regime within the office where the people who interrogate prisoners are entirely separate from the people who prosecute trials," Stevens asked. "And supposing the prosecutor then hired some expert layman who had no trial experience at all to develop such a program. … Would the person who developed that program be entitled to immunity?"

"The layperson, as a private actor, I think would not be," Coates said.

"Well, why is it qualified immunity if a separate person does it, but not qualified immunity if precisely the same task is performed by somebody who happens also to be a prosecutor?" Stevens asked.

"I think the buck stops with the prosecutor as to whether [there is] a valid process or not," Coates said. "[Laypeople] may adequately perform their function, or they may not. But the person at the end of the day who is responsible for it ends up being the prosecutor."

E. Joshua Rosenkranz of the New York offices of Orrick, Herrington & Sutcliffe, represented Goldstein.

He said the key issue is the duty of prosecutors and others to disclose information about informants' deals, which has to do with how the prosecutor's office is run, not how cases are tried.

"This claim is no different from a claim against a chief of police, for example, for systematically destroying 911 tapes, thereby depriving defendants of exculpatory information," said Rosenkranz.

Justice Ruth Bader Ginsburg asked if Goldstein was asking for too broad a rule.

"But the bottom line would be, if you are right, that every district attorney in the country, large or small office, would have to have a data bank that can be shared by all prosecutors [of] informants that are used," Ginsburg said.

"Not necessarily, Your Honor," Rosenkranz said. "[But if] you were aware of strong warnings of this bizarre atmosphere in which jailhouse confessions are being used in this way, and you are aware that lawyers on one side of the office don't know what lawyers on the other side of the office are doing, then, yes, you are deliberately indifferent to the constitutional violations."

A decision from the Court is expected later this term.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com