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Lawyer Wins Right to Sue Cooley

Courts: An appeals panel says Leonard Milstein can argue malicious prosecution against the district attorney.

July 21, 2001|ANNA GORMAN | TIMES STAFF WRITER

A federal appeals court ruled Friday that a Woodland Hills attorney has the right to sue Los Angeles County Dist. Atty. Steve Cooley for malicious prosecution in connection with a 1995 criminal case filed against the defense lawyer.

The U.S. 9th Circuit Court of Appeals reversed part of a lower court decision dismissing the case filed by Leonard Milstein, an attorney who had been charged with bribery and perjury. The three-judge panel remanded the case to the district court.

The judges ruled that Cooley and Deputy Dist. Atty. Robert Foltz are not shielded by prosecutorial immunity if--as Milstein charges--they fabricated evidence, made false statements to the media and filed a false crime report. They were, however, shielded by immunity when they secured a grand jury indictment and an arrest warrant against Milstein six years ago.

"I think the court has drawn the line a little bit too far," said Steven Renick, attorney for Cooley and Foltz. "In that sense, I'm not thrilled with the decision. But it would be hard to call it a loss. We were vindicated in half of what we argued."

Cooley, who at the time of the cases was a deputy district attorney, referred inquiries for comment to Renick on Friday.

Milstein's civil attorney, Wiley Ramey, said he was pleased with the decision and looks forward to presenting the civil case to a federal district court. Ramey said he believes the criminal charges against Milstein were filed in retaliation because the defense attorney won a client's acquittal on a murder charge.

"I haven't heard of too many attorneys who have been attacked as viciously as Mr. Milstein, who had done such a fine job in representing somebody who was charged with the most serious crime--capital murder," Ramey said. "Instead of being recognized, he was indicted as retribution."

Milstein's client, Brad Milward, had faced the death penalty in the execution-style murders of two men. A jury acquitted him in 1989 of killing one of the men and deadlocked on the second murder count. Milward eventually pleaded guilty to a reduced charge.

After the trial, Cooley and Foltz accused Milstein of using false testimony from jailhouse witnesses in the case, saying he bribed a jail inmate to lie on the witness stand. Milstein was found guilty on felony counts of bribery, perjury and obstruction of justice, and was sentenced to three years in state prison. A state appellate court later threw out that conviction, declaring there was insufficient evidence.

Michael M. Crain, who represented Milstein in the criminal case, said he thought the charges against Milstein should have been dismissed from the start. "Mr. Milstein had not done anything wrong," he said. "The evidence against Mr. Milstein primarily came from a person who had been convicted of numerous crimes. The testimony was outrageous."

Milstein filed the civil suit in 1999 against Cooley and Foltz, alleging that they conspired to deny him due process and subject him to malicious prosecution. The attorney accused the prosecutors of seven violations, including fabricating evidence and investigating the alleged crime.

Milstein additionally said that Cooley and Foltz also had made false statements to the media.

A district court judge dismissed Milstein's case, saying that Cooley and Foltz were protected because they were acting in their role as prosecutors. But the appellate court ruled Friday that the immunity does not cover all of the alleged acts.

Milstein now practices bankruptcy law in San Luis Obispo.

Renick said that the prosecutors did not violate Milstein's rights.

"There's no truth to the [allegations] whatsoever," he said. "I am somewhat disappointed at the opinion, but confident that Mr. Cooley will ultimately prevail in this litigation."

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