July 24, 2001 

The decision raises the possibility that the recently elected DA may eventually have to defend before a jury his actions when he was a junior prosecutor. 

It is also a further demarcation between absolute and qualified immunity, as the unanimous panel held that allegations of false reports or any investigations done by a prosecutor before probable cause exists can be grounds for a civil suit. 

"Because certain of the prosecutors' acts were not done in their role as advocates, they are not shielded by absolute immunity," Judge Procter Hug Jr. wrote. 

Attorney Leonard Milstein had defended a man accused of double murder by Cooley and Robert Foltz Jr., both assistant DAs at the time. The client was acquitted of one charge and the jury hung on the other, and Milstein alleges that Cooley and Foltz sought revenge for their loss by prosecuting him. 

At first, the prosecutors obtained a grand jury indictment, based largely on what Milstein alleged were the false statements of an inmate who testified for the defense during the murder trial. The indictment was tossed by a state court. 

The inmate then filed a complaint against Milstein, who a jury ultimately convicted of suborning perjury. The conviction was overturned on appeal, and Milstein sued the prosecutors in state and federal court. 

Friday's decision in Milstein v. Cooley, 01 C.D.O.S. 6092, is not a finding that Cooley suborned perjury. Since the lower court threw the case out on a motion to dismiss, the 9th Circuit assumed Milstein's allegations were true for the purpose of making its decision. 

"It's not really that big a deal to say that he's got a claim" without saying whether the claim is valid, said Los Angeles' Manning & Marder, Kass, Ellrod, Ramirez partner Steven Renick, who defended the prosecutors. 

"If it does go to trial, they expect to be fully vindicated," Renick said. 

A California appeals court threw out the state case under California's anti-SLAPP statute. A motion for attorneys' fees is now pending, and Renick said they could become a bargaining chip if any settlement negotiations were to take place. 

Milstein alleged the prosecutors committed a host of violations, including using the witness to generate false evidence, acting as advisers to the grand jury when they in fact were the complaining witnesses, opposing the appointment of Milstein's counsel when the second case was filed, and making false statements to the press. 

Although under Imbler v. Pachtman, 424 U.S. 409, prosecutors are immune from civil prosecution for submitting false testimony, suppression of exculpatory evidence and malicious prosecution, several exceptions have been carved out. Fabricating evidence, the 9th Circuit ruled, is one of them. 

"Shopping for a dubious expert opinion is fabricating evidence, which is unprotected by absolute immunity," Hug wrote. "It follows, then, that acquiring known false statements from a witness for use in prosecution is likewise fabricating evidence that is unprotected by absolute immunity." 

Talking with the press is also not covered by absolute immunity, the court said. But it upheld the district court in several respects. 

It held that Cooley and Foltz could not be prosecuted for securing the grand jury indictment or for opposing the appointment of counsel. Both, Hug wrote, fell within their roles as advocates. 

Wiley Ramey Jr., Milstein's lawyer, said the case was important. "It's an important ruling because the defendants are prosecutors," he said. "It clarifies that there is a limit to absolute immunity." 

Ramey said Milstein hardly practices criminal law anymore. As for his client's reaction to Cooley's election, he laughed. 

"Let the record speak for itself," he said.