The Supreme Court let stand yesterday a ruling that the usual absolute immunity of prosecutors from private damage suits didn't shield the Justice Department's Guy Goodwin, who allegedly lied to a judge while heading a unit created by the Nixon administration to presecute crimes by "revoluntionary terrorists."
The purported perjury occurred in U.S. District Court in Tallahassee, Fla., in July 1972, when Goodwin was directing a special grand jury investigation into allegations that the Vietnam Veterans Against the War (VVAW) planned to disrupt the Republican National Convention in Miami.
The Supreme Court is expected to act in the next few days or weeks in additional immunity cases, including one involving members of Congress and their staffs, and another involving officials of the executive branch.
In the Goodwin case, rumors reached the defense camp while the grand jury was hearing evidence that FBI agents or state or local police officers had infiltrated the VVAW. Eighteen members of the group including some who face indictment-filed a motior for a sworn, written response from the government.
But Judge David L. Middlebrooks ordered Goodwin to the stand, and , after the prosecutor was sworn, asked him one question: "Mr. Goodwin, are any of [these] witnesses represented by counsel agents or informants of the United States of America."
Goodwin replied, "No, your honor." The judge permitted no further questioning.
The grand jury then indicted eight of the witnesses on charges of having conspired to disrupt the GOP convention.
A year late, during the trial, Emerson L. Poe, one of the witnesses who had requested written disclosure of possible infiltration, was revealed to have been a paid FBI informer for more than six months before Goodwin swore there are none.
The defendants won acquittals and filed a $1.2 million damage suit alleging that Goodwin's false testimony had violated their civil rights. Citing the doctrine of absolute prosecutorial immunity, Goodwin moved to dismiss the suit. U.S. District Court Judge Aubrey E. Robinson of the District of Columbia denied the motion on the ground that prejury, if committed, was unprotected by the immunity.
Last September, a divided U.S. court of appeals here affirmed, holding that Goodwin's alleged misconduct was not entitled to absolute immunity because it occurred in connection with the "investigative," rather than the "deliberative," role of the grand jury.
That "amounts to a holding that absolute immunity provides no meaningful coverage of the ordinary functions and actions of a prosecutor in conducting a grand jury," Solicitor General Wade H. McCree protested in a petition for Supreme Court review.
He argued that absolute prosecutorial immunity protected Goodwin just as absolute judicial immunity protected Harold D. Stamp, a DeKelb County, Ind., judge. McCree cited the court's 5-to-3 ruling last March that Linda Kay Sparkamn couldn't sue Stump, who in 1971, when Sparkman was 15, approved her mother's petition to have her sterlized - without her knowledge, without disclosure in public records and without a hearing of any sort. Sparkman entered a hospital expecting to have an appendec-tomy.
State law empowered Stump to approve the petition, the court ruled. Therefore, the approval was a judicial act, and, even if he erred, acted maliciously or exceeded his authority, the doctrine of absolute judicial immunity protected him from a damage suit, the court decided.
Most any day, the court will decide one of the most important cases. It concerns the absolute immunity granted by the Constitution "for any speech or debate" in Congress, except for questioning in either the Senate or the House.
The question is whether "speech or debate" immunized a Senate subcomittee chairman and its staff when, under a Senate resolution authorizing an investigation of urban rioting, they obtained private papers - including love letters - from Kentucky officials who had seized them unconstitutionally from a couple named Alan and Margaret McSurely.
The senator was the late John L. McClellan (D-Ark.), chairman in the 1960s of the permanent subcommittee on investigations. Two of the three staff members in the case also are dead.
In oral argument four weeks before the decision in the Stump-Sparkman case, Deputy Solicitor General Frank H. Easterbrook, replying to questions by Justice Potter Stewart, said that investigators with a legitimate legislative purpose would be protected by "speech or debate" if they committed a burglary or even a murder.
Emphasizing that he didn't find such hypothetical crimes "intuitively appealing," Easterbrook said "an immunity that would protect only when no wrong was alleged to have been committed would be no immunity at all."
For the McSurelys, Morton Stavis agreed that immunity is absolute for "speech or debate." but he argued that the phrase applies to voting, speeches and other normal legislative activities, not a law-breaking.
The U.S. Court of Appeals for the District of Columbia ruled for the McSurelys, holding that they had a right to sue.
Another pending Supreme Court decision involves the third branch of government.
The issue is whether the immunity of federal officials from suits for damages based upon their performance of official duties, in connection with administrative enforcement proceedings, is absolute or qualified. Under qualified immunity, an official cannot be held personally liable for acts he or she reasonably thought to be legal.
The case involves Arthur N. Economou, who seeks $32 million from Agriculture Department officials, including former secretary Earl Butz, for initiating and conducting - wrongfully and maliciously, Economou says - an enforcement proceeding based on violations of the Commodity Exchange Act.
A suit brought by Economou and his company was dismissed by a District Court on the ground that the officials had absolute immunity. The 2nd U.S. Circuit Court of Appeals reversed, ruling that their immunity was only qualified.
The decisions in the "speech or debate" and Economou cases may influence the disposition of other cases in which review of lower-court rulings was sought as long ago as September 1976.
Another related case awaiting court review arose from demonstrations on the Capitol steps on May Day 1971, when about 1,200 persons were arrested. Alleging false arrest and violation of First Amendment rights, among other things, those arrested won a $12 million damage award from a jury in U.S. District Court here.
One of those held liable was Capitol Police Chief James M. Powell. The appeals court held that he had only qualified immunity. It ordered a new trial on the amount of damages.
Meanwhile, Congress is considering a Justice Department bill to give absolute immunity to all federal law enforcement agents and agencies.