The New York Times

The New York Times, Feb 3, 2004

Judge Voids Murder Verdict In California Case From 1980 by John M. Broder

A jailhouse informer with a long criminal record, a heroine user who testified in nine other cases that people sharing cells with him had confessed to crimes, told lies that put Thomas Lee Goldsmith in jail for murder twenty four years ago. There was no physical evidence linking Goldsmith to the murder. One witness described a black assailant, the other said he saw a Hispanic assailant. Mr. Goldsmith is white. An appeals court has ordered Goldstein's release, but Los Angeles prosecutors want a new trial.

LONG BEACH, Calif., Feb. 2 -- A state court judge on Monday threw out the murder conviction of a man who five federal judges previously said should be released because his trial 24 years ago was tainted by the testimony of an unreliable jailhouse informant.

After a 15-minute hearing, the judge, Arthur Jean of Los Angeles County Superior Court, said he was voiding the conviction of Thomas Lee Goldstein, 55, ''because of the cancerous nature of the appearance of this case.''

Judge Jean's ruling followed opinions from two federal court judges and an appeals court panel who ruled that Mr. Goldstein had been wrongly convicted and should be released from prison immediately.

The United States Court of Appeals for the Ninth Circuit, in San Francisco, issued a forceful order in December demanding Mr. Goldstein's release without bail and reinforced the demand again last Friday. But Los Angeles County authorities have continued to hold him in a county jail and on Monday announced their intention to try him again for the 1979 killing. He will remain in custody pending the new trial, officials said.

Mr. Goldstein's lawyer, Dale M. Rubin, said the judge was correct in throwing out the conviction and said he was preparing for a new trial.

Mr. Goldstein, a former marine with two misdemeanor convictions for drunkenness, appeared in court wearing a blue Los Angeles County Jail jump suit and manacles. Bearded and white-haired, he did not speak, except to his lawyer.

He was convicted in 1980 for the shotgun killing of John McGinest, 25, in Long Beach on the night of Nov. 3, 1979, in an alley near where Mr. Goldstein lived. The murder weapon was never found and no physical evidence linked Mr. Goldstein to the crime. One witness described the gunman as Hispanic; another said he was black. Mr. Goldstein is white. Nonetheless, he was found guilty and sentenced to 27 years to life.

Any retrial poses problems for prosecutors because the two key witnesses in the case are dead. The jailhouse informant, Edward F. Fink, was a heroin user with a long criminal record who provided testimony in a number of cases in exchange for leniency on numerous felony convictions.

Mr. Fink shared a jail cell in Long Beach with Mr. Goldstein when he was arrested two weeks after the shooting. Mr. Fink told the police and later testified that Mr. Goldstein had confessed to the killing, saying the victim owed him money and refused to pay. Mr. Fink testified in nine other cases that people sharing cells with him had confessed to crimes.

''Mr. Fink was notorious as a jailhouse fink,'' said Mr. Rubin. ''Mr. Fink got the deal of a lifetime.''

The other witness, Loran B. Campbell, recanted his testimony against Mr. Goldstein in 2002, saying the police had told him that they were sure Mr. Goldstein was guilty and that he had been ''a little overanxious'' to help them in their case. Mr. Campbell died last year.

In 1998, aided by lawyers and investigators of the federal public defender's office in Los Angeles, Mr. Goldstein went to federal court saying his constitutional rights had been violated by the use of testimony from tainted witnesses.

Two federal judges agreed with him, and when county prosecutors appealed, a three-judge panel of the federal appeals court upheld them. On Friday, the appeals court ordered a federal trial judge to determine whether Los Angeles officials were in contempt for failing to comply with the court's order to release Mr. Goldstein.

The Los Angeles County district attorney's office said on Monday that it remained convinced of Mr. Goldstein's guilt and had been building evidence and contacting witnesses to retry him. ''Authorities feel the prosecution case remains strong and viable against Goldstein, even though nearly a quarter of a century has elapsed since the crime,'' the office said in a statement.

Prosecutors are asking that Mr. Goldstein be held until trial without bail, his lawyer said.

Mr. Rubin predicted that the state would fail to persuade a jury to convict Mr. Goldstein, because it could not use what he called the perjured testimony of Mr. Fink and Mr. Campbell.

''I guess it is really difficult for any prosecuting agency to say 'We made a mistake,' '' Mr. Rubin said. ''Instead, they want to keep inflicting the same errors over and over again.''