DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

November 20, 2008

Will Obama Have an Awkward Inaugural Moment?

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - It could be a little awkward when President-elect Barack Obama faces Chief Justice John G. Roberts Jr. to take the oath of office on Inauguration Day.

That's because Obama will be the first-ever president to be sworn in by a chief justice whose confirmation he voted against. The U.S. Senate Historical Office, and several experts on Supreme Court history, verified that fact Wednesday.

Only 15 senators have ever become president and many of them did not vote to confirm any chief justices to the Supreme Court. The last sitting senator to be elected president was John F. Kennedy in 1960, well before the recent trend for contentious Supreme Court confirmation proceedings began.

There are also a few presidents who, for reasons beyond their control, couldn't wait for the chief justice to swear them in. Lyndon Johnson, who was sworn in by a federal district court judge after Kennedy's assassination in 1963, is the most famous example.

Dennis J. Hutchinson, a law professor at the University of Chicago, agreed with the Senate Historical Office's conclusion with one caveat.

He noted that, in 1836, the Senate confirmed Roger B. Taney as chief justice, but the vote was "in an executive session in which no records were kept."

At the time, future president James Buchanan was a Democratic senator from Pennsylvania and, in theory, could have voted against the nomination.

It's unlikely, "to put it mildly," Hutchinson conceded, because Buchanan was from the same party as the president who nominated Taney, Andrew Jackson.

Despite Obama's vote, it's unlikely to sour the occasion for either man, according to David J. Garrow, an expert on Supreme Court history who teaches at the University of Cambridge.

"We've got two gentlemen who are both smoother than silk in their style of personal interaction," he said. "I don't think it's going to loom large in any way."

Obama has already admitted that, prior to the September 2005 vote, his initial instinct was to vote for Roberts' confirmation because he admired his fellow Harvard Law School graduate's intellect.

According to the Washington Post, he was also wary of voting on ideological grounds because, even then, he was worried opponents could use it to justify voting against his own nominees if he ever became president. Obama was eventually persuaded by a senior aide that it was more important for his short-term political goals to vote 'nay,' according to the newspaper's account.

For the record, Obama's rival for the Democratic nomination, Sen. Hillary Clinton, D-New York, also voted against confirming Roberts. Not surprisingly, Sen. John McCain, R-Ariz., who lost the general election to Obama, voted for confirmation.

Whatever happens at the Jan. 20 inauguration, Supreme Court historian Lucas A. "Scot" Powe, a law professor at the University of Texas at Austin, is confident "this won't be the most awkward swearing-in."

That distinction, he suggested, should go to the 1801 swearing in of Thomas Jefferson by Chief Justice John Marshall.

They "detested each other," Powe said.

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

November 13, 2008

SUPREME COURT STRIKES BAN ON NAVY'S USE OF SONAR IN THE PACIFIC

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - A split Supreme Court Wednesday ruled in favor of the U.S. Navy in a dispute over the environmental damage caused by the use of sonar off the coast of California.

In a decision that will have implications for future environmental challenges, the court vacated two provisions of a preliminary injunction issued by a Los Angeles federal judge that placed limits on the Navy's exercises.

Environmentalists claimed the Navy's use of high-frequency sonar could injure or even lead to the death of whales and other marine mammals.

In its first ruling of the term, the court held 7-2 that the injunction should be vacated, with Justices Ruth Bader Ginsburg and David H. Souter dissenting.

In what environmentalists described as a narrow ruling, the court left in place four other restrictions imposed by U.S. District Judge Florence-Marie Cooper that were not challenged by the Navy.

The impact the decision could have remains an open question.

On the one hand, the plaintiffs - the National Environmental Defense Council - say the Navy is now taking environmental issues more seriously.

But, less to their liking is the fact that the court's majority opinion made it clear that Cooper should have given more deference to the Navy.

As for the exercises in California, they are due to finish in January 2009 in any case, so the effect will be minimal.

In response to the ruling, the Navy promised to act in a way that "protects our nation's security and the precious maritime environment," Chief of Naval Operations Admiral Gary Roughead said in a statement.

Writing for the majority, Chief Justice John G. Roberts Jr. concluded that Cooper failed to balance the Navy's interests against those of the whales before imposing a preliminary injunction over the use of high-frequency sonar. Winter v. Natural Resources, 07-1239.

Upon weighing the interests of the Navy and the plaintiffs, the majority found that it was not "a close question," Roberts wrote. "We conclude that the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy."

Cooper wrote in her August 2007 injunction that there was "near certainty" of severe damage to the environment. The 9th U.S. Circuit Court of Appeals upheld the injunction, with some modifications.

In January, Cooper modified her injunction by allowing the Navy to use sonar as long as it complied with the six restrictions.

The Navy subsequently appealed two of those: a requirement that it shut down sonar when within 2,200 yards of a marine mammal and another ordering it to power down the sonar by six decibels during certain weather conditions.

In March, the 9th Circuit upheld the new restrictions.

In Wednesday's opinion, the majority stressed that its decision did not reach the underlying merits of the National Environmental Defense Council's argument, namely that the Navy had failed to comply with the National Environmental Policy Act. To do so, it was required to prepare an environmental impact report.

Roberts did, however, hint strongly in his opinion where he stood by noting that "even if plaintiffs have shown irreparable injury from the Navy's training exercises, any such injury is outweighed by the public interest."

As for Cooper's injunction, Roberts took issue with the standard of review, which was also adopted by the 9th Circuit. Both courts believed that an injunction was warranted if there was the "possibility" of irreparable injury. But, Roberts wrote, plaintiffs have to establish that they are "likely" to suffer irreparable injury.

Justice Stephen Breyer wrote a separate opinion in which he dissented in part on the issue of whether the 9th Circuit's modified injunction should remain in place until the Navy's exercises conclude in January.

That's because the Navy has yet to complete its environmental impact report required under NEPA. But he and Justice John Paul Stevens, who joined in the concurring section of Breyer's opinion, both agreed that the injunction should be vacated.

In her dissenting opinion, Ginsburg focused on the underlying merits of the environmentalists' case. In noting that the Navy had failed to complete its environmental impact report before beginning the exercises, Cooper had "conscientiously balanced the equities," she wrote.

Although Wednesday's decision will have little impact on the exercises currently taking place, it is likely to affect future environmental challenges within the 9th Circuit's jurisdiction.

Joel Reynolds, an attorney for the National Resources Defense Council, conceded that lower court judges need to carefully marshal their facts before issuing preliminary injunctions going forward.

"In future cases, it would be important for the lower courts to carefully articulate the factual basis for issuing an injunction," he said.

Reynolds noted that the court clearly "wasn't satisfied" with Cooper's reasoning.

The 9th Circuit's willingness to uphold preliminary injunctions in environmental cases has already raised the ire of business groups.

The California Forestry Association and others highlighted their concerns in an amicus brief they filed in the case.

Paul S. Weiland, who heads the land use and environmental resources group at Nossaman, said that in future environmental groups will have a higher hurdle to reach before they can get a preliminary injunction.

But, he stressed, that doesn't mean environmentalists won't be able to win cases on the merits once they are fully litigated.

"The case can proceed, but what the environmental groups expect will change," Weiland said. "There's a better shot now than there was yesterday that the federal government can push back on what's required of them."

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

November 10, 2008

Court Takes Up Whether Lab Technicians Are Required to Testify

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The U.S. Supreme Court will hear arguments today in a case that could dramatically affect the right of defendants to cross-examine laboratory technicians whose reports are introduced into evidence at trial.

Jeffrey Fisher of Stanford University's Supreme Court Litigation Clinic will be arguing that technicians who prepare forensic reports should be physically present in the courtroom to give testimony in order to meet defendants' Sixth Amendment rights to confront their accusers, Melendez-Diaz v. Massachusetts, 07-591.

In California, the current practice - endorsed by the California Supreme Court in 2007 - is for supervisors to testify on behalf of the technicians who prepared the report, but even that could be under threat, depending on what the Supreme Court rules.

Fisher's client, Luis Melendez-Diaz, was convicted in Massachusetts of cocaine trafficking based in part on a laboratory report that analyzed a substance taken from another man.

He failed to convince the state appellate court in Massachusetts that the laboratory report was testimonial, which would have allowed the defense to cross-examine the technician who prepared it.

The case hinges on whether a major Sixth Amendment ruling from 2004, in which the justices agreed unanimously that any out-of-court statement that is testimonial in nature cannot be used unless the defendant has a right to cross-examine, applies to laboratory reports prepared for use in prosecutions. Crawford v. Washington, 541 U.S. 36. In Crawford, the court didn't address what kind of out-of court statements count as testimonial.

State and federal courts are split on the issue.

Although the case has not attracted much attention as others on the docket this term, Erwin Chemerinsky, dean of the new law school at UC Irvine, has earmarked it as potentially the most important case yet granted in terms of its impact on the legal community. It's a case that judges around the nation he has talked to are following closely, he added.

"I think there's a huge benefit to the defense for being able to cross-examine," Chemerinsky said. "On the other hand, there's an enormous practical problem of requiring a live witness."

Unlike many other states, including Massachusetts, California does not have a statute that allows laboratory reports to be admitted as "public records," which allows them to be exempted from the hearsay rule.

That means that a representative from the laboratory, if required to by the defense lawyer, has to testify about a report at trial.

In 2007, the California Supreme Court found no constitutional problem with the introduction of a DNA analysis report without the live testimony of the examiner who prepared it. People v. Geier, 161 P.3d 104 (Cal. 2007).

The court held that the defendant's Sixth Amendment rights were not violated by the laboratory supervisor providing the testimony instead.

The case has been appealed to the U.S. Supreme Court on the hope that the justices will resolve that question but it will likely be held until the Massachusetts dispute is resolved.

That's because Melendez-Diaz could have an impact on Geier.

"It's up in the air," said California Deputy Attorney General Andrew Mestman, who represents the state in Geier. "It depends how broad or narrow the ruling is."

It would have to be a broad ruling to even reach the question in Geier.

If the court merely says that technicians are required to testify but doesn't specify whether supervisors can, then Geier would still be unresolved.

Jennifer L. Mnookin, a law professor at the University of California at Los Angeles, said that question presented in Geier - whether a surrogate for the technician can testify about the laboratory report - is "not explicitly at issue in Melendez-Diaz, though it certainly is an issue at the edges of the case."

As for Fisher, he said in an interview that Melendez-Diaz "would not have a significant impact" in California although he concedes there may be "cases on the on the margins" that could be affected.

Prosecutors are united in opposing the idea that the Sixth Amendment right to confrontation should extend to laboratory technicians.

Mestman stressed that if technicians - rather than supervisors - had to testify, it would put a strain on resources in California's 14 laboratories.

"There's already significant backlogs and it would be a further burden," he said.

In the federal government's brief, Solicitor General Gregory G. Garre stresses that requiring forensic examiners to testify in person "consumes scarce criminal justice resources, with little or no countervailing benefit to the truth-seeking process."

Attorneys general from 35 states use even stronger language in their joint brief.

Corey L. Maze, the solicitor general of Alabama, wrote that there would be "systematical gridlock in state courts and laboratories," if the court found for Melendez-Diaz.

Maze also warns of the dangers of laboratory technicians failing to appear at trial due to increased demands on their time.

She cited a recent Yale Law Journal article in which Arizona prosecutor Andrew P. Thomas wrote about the increasing importance jurors place on forensic evidence, based in part on the viewing of high-tech forensics TV shows like "CSI."

"Defendants know this, and if petitioner prevails here, it is knowledge they will use against the states," she wrote.

Although stressing that laboratory reports should be considered testimonial, Fisher and some other law professors downplay the practical impact a ruling in Melendez-Diaz's favor would have.

"I don't think it would be a big deal in terms of administrability," Fisher said.

UCLA's Mnookin, who contributed to an amicus brief in support of Melendez-Diaz, believes that the change in the law would only affect a small number of cases.

That's because few criminal prosecutions go to trial, with 95 percent of all state convictions obtained through a guilty plea.

Even when cases do go to trial, there may be no need to confront the forensic examiners because the parties may agree to stipulate to certain facts.

In many trials, "it's not clear if it's to the defense's practical advantage" to call such a witness, Mnookin added.

As for which way the court will go, Chemerinsky noted that the court hinted at its willingness to "strictly enforce" Crawford in a case last year.

The justices held 6-3 that a defendant's Sixth Amendment rights were violated because he couldn't cross-examine the victim he was accused of killing about prior statements she made to police. Giles v. California, 128 S.Ct. 2678.

"That would indicate a court that would be inclined to extend Crawford to this," Chemerinsky said.

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

November 07, 2008

Porn Prosecutors Seek Recusal of Entire 9th Circuit

By John Roemer
Daily Journal Staff Writer
SAN FRANCISCO - Federal prosecutors have written to all 50 judges on the 9th U.S. Circuit Court of Appeals, asking them to consider recusing themselves from hearing accused pornographer Ira Isaacs' appeal.

The rare move is further fallout from the disclosure in June that Chief Judge Alex Kozinski's Web site contained sexually explicit images.

That revelation led to a judicial misconduct probe of Kozinski and to additional complaints from Beverly Hills lawyer Cyrus Sanai against Kozinski and other circuit judges for allegedly mishandling Sanai's federal appeals.

The misconduct probe, the Sanai complaints and the federal call for possible recusal of the entire court have knotted the 9th Circuit in a judicial discipline and procedural tangle.

Laurie L. Levenson, a professor of law at Loyola Law School, said the confluence of a high-profile pornography prosecution and the discovery of questionable content on Kozinski's Web site amounts to trouble for the 9th Circuit.

"It's a can of worms. It's uncomfortable. It's an embarrassment for the court," she said.

"The realities are that the judges have to look in the mirror when they are confronted with the prospect of recusal. They must ask, 'Can we decide a case and expect public confidence when it involves our chief judge and when it involves a case on the front pages of the newspapers?'"

Kozinski's now-defunct site, alex.kozinski.com, included a photo of naked women on all fours painted to look like cows and images of masturbation, public sex, defecation and urination.

A U.S. Department of Justice Obscenity Prosecution Task Force accused self-described "shock artist" Isaacs of distributing movies featuring scatology and bestiality.

The Kozinski Web site photos, the federal prosecutors wrote the judges Oct. 29, "were at least thematically similar to some of the materials in the videos that were the subject of the criminal charges against Isaacs." The prosecutors cited the Los Angeles Times article that described Kozinski's site and noted its content's relationship to the Isaacs images.

Kozinski, who was presiding over Isaacs' Los Angeles trial by designation, recused himself from the Isaacs proceedings after his Web site made the news. He declared a mistrial and called for an investigation into his own conduct.

After the mistrial, Isaacs argued that the Constitution's double jeopardy clause barred his reprosecution, but a new trial judge ruled against him. He appealed to the 9th Circuit. U.S. v. Isaacs, 08-50423.

Kozinski and his defense attorney, Mark Holscher of Kirkland & Ellis in Los Angeles, did not respond to a request for comment on the circuit-wide recusal issue. The 9th Circuit's clerk, Molly A. Dwyer, did not return a call for comment on the procedures the court follows in such cases.

Roger Jon Diamond, the Santa Monica criminal defense lawyer representing Isaacs, opposed circuit-wide recusal.

"It is obvious that what is motivating the Obscenity Prosecution Task Force is its desire to embarrass the 9th Circuit," Diamond wrote in court papers, suggesting that recusal of the entire court would discredit its reputation and hand ammunition to its critics. "It is a matter of common knowledge that political conservatives in Washington, D.C., have been trying to split the 9th Circuit for years."

In a phone interview Diamond added that he wished the trial had gone forward before Kozinski. "He's smart, he's relaxed, he's nice even though he's a Reagan appointee," he said. "And I say that as a criminal defense attorney. He's a libertarian."

The revelations about Kozinski's Web site should not have forced the ending of the trial, Diamond said. "Judges should have more freedom in their personal lives. We don't want to have pro-liberty judges like Kozinski disqualifying themselves."

The 9th Circuit's rulemaking and disciplinary group, the Judicial Council, voted to recuse itself from the Kozinski misconduct investigation, citing the "extraordinary circumstance" that the chief judge's conduct was in question. It sent the matter to the Philadelphia-based 3rd Circuit for a decision on whether Kozinski had violated the federal judiciary's conduct code. That inquiry is ongoing.

In effect, the federal prosecutors asked the 9th Circuit's senior and active judges, shouldn't judges from another circuit also hear a criminal appeal in a case involving some of the same issues?

Lending weight to the government's question was the rank of the Washington, D.C., prosecutors who asked it. They included Matthew W. Friedrich, the acting assistant attorney general for the criminal division and Michael A. Rotker, a criminal division appellate specialist.

They styled their pleading not as a demand but as a "Notice of potential need for recusal" based on Kozinski's actions in declaring a mistrial in the Isaacs case and on the misconduct claims against him.

Arthur Hellman, a professor of law at the University of Pittsburgh School of Law, closely monitors the 9th Circuit.

"The government's notice raises some very difficult issues for the court," Hellman said.

"The number of complications is mind-boggling. How do they handle this? Do they wait for each judge to send a response? Do they poll the judges and decide by a majority vote? Is it an institutional decision or a set of individual decisions? Or can the judges simply decide that because the government filed a 'notice' and not a 'motion,' they don't have to do anything. We're very much in uncharted waters."

Hellman saw a parallel in a 9th Circuit case currently pending en banc review. As with Kozinski hearing the Isaacs case it involved a circuit judge sitting on a criminal trial.

"That appeal calls into question the rulings of Circuit Judge Richard Tallman, who was sitting by designation on a criminal case in the District of Idaho involving a plot to murder an Idaho federal judge," Hellman said. The case is U.S. v. Hinkson, 526 F.3rd 1262 (2008).

"It would have been helpful to make explicit that [the prosecution is] not suggesting that circuit-wide recusal be considered simply because the appeal challenges a ruling by a circuit judge sitting by designation on a district court."

Prosecutors pointed out that there is precedent for an entire circuit's recusal. They cited an instance when the 11th Circuit took that step to avoid hearing appeals of a man convicted of murdering a colleague, Circuit Judge Robert S. Vance. U.S. v. Moody, 977 F.2nd 1420 (11th Circuit, 1992).

That argument surprised John C. Eastman, dean of Chapman University School of Law in Orange.

"So a fairly silly issue over Judge Kozinski is now being equated with the killing of a member of the federal bench?" Eastman said. "I really don't think the kind of emotion associated with that murder exists in this little dispute over Alex Kozinski's sitting as a trial judge."

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

Nov. 03, 2008

Former L.A. District Attorney Goes to High Court to Protect Immunity for Supervisors

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - When Thomas L. Goldstein went to prison for a murder he maintains he didn't commit, he was put there by a jailhouse snitch called Fink.

True to his name, Edward Fink was a long-time informer for the Long Beach Police Department in the late 1970s. At Goldstein's 1980 trial for the murder of John McGinest, Fink testified that the defendant had confessed the murder to him when they shared a cell in Long Beach's jail. He also testified that he was not receiving any benefits from the Los Angeles County district attorney's office for cooperating.

Fink was lying.

Twenty-four years later, after finding out that Fink had in fact benefited from his testimony by negotiating a favorable plea bargain in another case, Goldstein was released from prison, his conviction vacated.

The district attorney's office sought to prosecute him again but then dropped the charges.

Goldstein filed a civil rights suit in 2005, not just against the law enforcement agencies, but also individually against the men in charge of the district attorneys' office in 1980 who, he says, were to blame for the failure to disclose Fink's history.

His main target was John Van de Kamp, the district attorney at the time, later California's attorney general, and now of counsel at Dewey & LeBoeuf in Los Angeles. Also named in the suit was his deputy, Curt Livesay, who is in private practice in Long Beach.

Both were at the district attorney's office at a time when the use of informants was rife, which came to light in 1990 following a major grand jury investigation.

As far as Goldstein is concerned, Van De Kamp and Livesay were responsible for the failure to keep records that would have allowed line prosecutors to know which informers were receiving benefits they could disclose it to defense attorneys.

Now his case is before the U.S. Supreme Court, with oral arguments scheduled for Wednesday.

At issue is whether supervising prosecutors should receive the same absolute immunity that is granted to line prosecutors in such disputes. Van de Kamp v. Goldstein, 07-854.

Judge A. Howard Matz of the Central District of California and, on appeal, the 9th U.S. Circuit Court of Appeals both agreed with Goldstein that the former supervising prosecutors did not have absolute immunity on the grounds that that the complaint was based on an administrative error rather than a prosecutorial one.

In his civil rights suit, in which he cited the damning 1990 grand jury report, Goldstein alleged that Van De Kamp and Livesay "failed to create any system for the deputy district attorneys handling criminal cases to access information pertaining to the benefits provided to jailhouse informants."

This was in direct violation of Supreme Court precedent, Goldstein alleged.

There are two cases, one from 1963 and the other from 1972, that lay out what information prosecutors have to disclose and what procedures they should have in place. Brady v. Maryland, 373 U.S. 83 and Giglio v. United States, 405 U.S. 150.

Van De Kamp and Livesay's lawyer, Timothy T. Coates, of Greines Martin Stein & Richland in Los Angeles, notes in his brief that the 9th Circuit ruling is at odds with Supreme Court precedent.

A key 1976 decision allowed prosecutors absolute immunity for all actions "closely related to the judicial process and taken squarely as a result of their responsibility as prosecutors." Imbler v. Pachtman, 424 U.S. 409.

Federal circuits are split on whether supervising attorneys receive absolute immunity for their administrative roles.

Coates' clients "vigorously dispute both the factual and legal basis" of Goldstein's case, he adds.

Van de Kamp declined in an interview to touch upon the facts surrounding Goldstein's prosecution. But he noted that at the time of the trial he was unaware of the case, in part because his office's Long Beach staff handled it.

"I had no hand in this case whatsoever," Van de Kamp said.

Both he stressed that the Goldstein's innocence has not been proven.

Chilling Effect

At a practical level, the case would likely have a minimal impact on Van de Kamp and Livesay, as the district attorneys' office would pay any damages on their behalf.

But, Steve Cooley, the current district attorney in Los Angeles, believes it would have a dramatic chilling effect on the ability of senior prosecutors to do their jobs.

"When the 9th Circuit ruled they way they did, it occurred to me that in 20 years from now I could be in the same unfortunate circumstance where Mr. Van de Kamp is," he said in an interview.

If the 9th Circuit's decision was to be upheld, it would affect "the scope and quality of the authority the prosecutor in making these decisions without fear," Cooley added.

It's a contention that Goldstein's lawyers dismiss.

"I think this is a very narrow case," said Ronald O. Kaye, of Pasadena-based Kaye, McLane & Bednarski. "I don't think it's going to open up the potential for lawsuits."

That's largely because a defendant has to have his sentence vacated before even attempting to make a federal claim under Section 1983 of the Civil Rights Act, he added.

Wide Interest

The case has attracted widespread interest among criminal law practitioners, with a number of interested groups, the federal government and 49 state attorneys general, filing amicus briefs on behalf of the former prosecutors.

Various civil liberties groups, including the American Civil Liberties Union, have filed briefs in support of Goldstein.

In a brief filed by Stephen N. Six, the attorney general of Kansas, the state attorneys general, including Edmund G. Brown Jr. of California, argue that the 9th Circuit was wrong to draw a distinction between prosecutorial and administrative duties.

The attorneys general warn of an adverse affect on the criminal justice system if the Supreme Court was to adopt the 9th Circuit's rule because supervising attorneys would then have less immunity than trial prosecutors, whose absolute immunity would not be affected.

"The appropriate rule in this context is to accord the supervising prosecutor at least the same level of immunity as the trial prosecutor," Six wrote.

Goldstein's case may be a narrow legal issue, but it also touches upon wider questions about criminal justice policy, according to his supporters.

Alexandra Natapoff, a professor at Loyola Law School in Los Angeles, sees Goldstein's case as just one example of the over-reliance on informants like Fink.

A former federal public defender who contributed to the ACLU's brief in the case, Natapoff is an expert on informant culture. She maintains that prosecutors have too much discretion when handling dozens, or even hundreds, of informants used in various cases.

That those same prosecutors then have immunity as well tilts the deck even further in their favor, she argues.

"It's the deal we have cut," Natapoff said.

Goldstein's experience was "just one rich example of the potential cost of that deal."

Although the Los Angeles County district attorney's office is now much better regulated, due in part to the 1990 grand jury report, civil rights groups claim that does not mean that others around the country have followed the same path.

Santa Cruz-based ACLU attorney M. Allen Hopper, who wrote the group's amicus brief, believes that although the court made it clear in Brady and Giglio that prosecutors must disclose any deals made with informants, there's no evidence that they consistently follow those rules.

In that sense, if the Supreme Court was to uphold the 9th Circuit the case could have wider implications, he added.

"A ruling in Goldstein's case would send a clear message to prosecutors around the country," Hopper said.

It's a message that Van de Kamp doesn't think needs to be sent.

"If this case gets upheld, I don't know why anyone would want to be a DA," he said.