On the Docket Nov. 5: Persecution, Torture & Wrongful Convictions

Case: Negusie v. Mukasey

Date: Wednesday Nov. 5, 2008

Issue: Is an individual eligible for asylum even if the persecution to which he was subjected included coerced participation in his oppressors' persecutory acts?

Background: The attorney general and the secretary of the Department of Homeland Security have broad authority to grant asylum to persecuted foreign nationals. A limitation on that power is that they may not grant asylum to individuals who "ordered, incited, assisted, or otherwise participated in persecution."

For much of the second half of the 20th century, the war between Ethiopia and Eritrea produced brutalities that led to the condemnation of the U.S. State Department. Especially brutal were the Eritrean conscription efforts. Alleged draft dodgers were thrown in jail and tortured. It is widely believed their treatment had nothing to do with shirking military service but was a form of religious persecution, especially against Protestant Christians. In 1994, Daniel Girmai Negusie was at a movie theater when Eritrean authorities conducted a conscription raid. He was eventually forced to spend six months in the Eritrean Navy before he was discharged.

Several years later fighting erupted again and Negusie was ordered to return to service. He refused. Negusie, who is half-Ethiopean, didn't want to fight his "brothers." The Eritrean government threw him in jail and allegedly tortured him. They eventually forced him to serve as a prison guard, though Negusie claims he never tortured anyone in this role. After four years, he escaped by swimming into the Red Sea and hiding inside a container ship that brought him to the United States, where he filed for asylum. His application was denied, and so far the lower courts have concluded that no matter his intent, the fact that Negusie assisted in the persecution of others is reason enough to deny his asylum request.

Negusie's lawyers argue the "consequences of the government's erroneous interpretation of the persecutor bar are substantial. Forced participation in persecutory acts is an increasingly common element of modern civil strife in numerous parts of the world, but under the government's view no individual subjected to that horrific treatment is eligible to be considered for a discretionary grant of asylum. This Court should correct that unsupportable result."

Case: Van de Kamp v. Goldstein

Date: Wednesday Nov. 5, 2008

Issue: Does the absolute immunity protection afforded to prosecutors extend to their administrative actions in addition to their legal duties?

Background: Thomas Goldstein was wrongly convicted of murder in 1980 in part because of the perjured testimony of a jailhouse snitch. After serving 24 years behind bars, Goldstein's conviction was overturned and he sued the heads of the Los Angeles County District Attorney's office. Goldstein says the office's lead prosecutors, District Attorney John Van De Kamp and his chief deputy Curt Livesay, failed to construct an effective office policy to prevent the use of perjured testimony or from knowing if such testimony would be offered in exchange for leniency. In this case, Goldstein notes the jailhouse informant "had an uncanny knack for extracting confessions from cellmates" and did in fact have a deal with prosecutors, though that deal was never revealed to Goldstein and the informant lied about it at trial.

Under well established precedents, prosecutors are immune from civil suits resulting from any official action taken during trials. What Goldstein is challenging is a claim of absolute immunity as it relates to these lead prosecutors who did not handle the guts of his case but were the office administrators. As he sees it, they were the ones who established a professional atmosphere allowing for the perjured testimony to be used against him. The Ninth Circuit agreed, saying the civil suit could proceed. The prosecutors argue "[t]here is no meaningful basis to distinguish between actions of an individual prosecutor with respect to compliance with [the law requiring trial prosecutor to turn over all relevant evidence] and the actions of a chief advocate or supervising prosecutor in making decisions concerning polices and training."