Gascon to Judges: Go Along or Get Out

Los Angeles judges just got dragged in to the conflict between George Gascon’s policies and the Penal Code. Gascon already has his hands full compelling his own prosecutors to follow orders to dismiss all enhancements. These orders are unwise at best and illegal at worst. Meanwhile, independently elected judges are refusing to go along. Their permission is required and they are not giving it. Today, Gascon began threatening them too.

Gascon is Forcing Prosecutors to Move to Dismiss Enhancements

In a dramatic move, Gascon banned the use of enhancements on his first day in office. Enhancements lengthen prison terms for particularly bad conduct. They also lengthen the terms of people with bad records. Gascon claims that these laws are racist and drive mass incarceration. The legislature claims these laws make the punishment fit the crime and take dangerous criminals off the street.

Crime victims and prosecutors are generally in favor of the use of enhancements. Prosecutors are also aware that the California Constitution and the Penal Code require the use of enhancements in certain circumstances. There were rumors of widespread opposition to Gascon’s ban on the filing of enhancements. The opposition correctly pointed out that Gascon was ordered prosecutors to violate the law. Instead of backing down, Gascon doubled down, and began threatening to fire those prosecutors who continued following the law. As their supervisor, Gascon has a lot of leverage of prosecutors. Threatening to fire someone is an effective way to compel them to do things. Gascon can intimidate his employees in other ways. He can give them “freeway therapy,” by assigning them to a courthouse across the county from their home. He can prevent them from obtaining plum assignments. He can move them to difficult or boring assignments.

Gascon seems to be using each one of these tools to force compliance with his orders. And it seems to be working. Most prosecutors are going along. But there has been resistance from the bench.

Gascon Needs the Judges’ Permission to Dismiss Enhancements

The law clearly provides that a prosecutor may not dismiss an enhancement herself. She must move the judge to do it. The judge, in turn, must make a finding that it is in the interests of justice. The findings required may be even more complicated for a “strike” offense. Prosecutors have been reluctantly moving to dismiss enhancements pursuant to Gascon’s instructions. They are doing this to avoid being fired, even though many believe that such dismissals are both unjust and illegal.

But judges haven’t been going along. They have been denying the motion. Many believe the judges are on solid legal ground. Today, Gascon’s administration responded to the judges.

Gascon Threatens the Judges

Each party in a criminal matter may refuse to have their case appear in front of a judge. (Pen. Code section 170.6.) This is called “papering” a judge. The email above is an order to paper Judge Shellie Samuels for refusing to dismiss enhancements. At first blush, this doesn’t appear to be that big of a deal. After all, Judge Samuels probably has hundreds of cases on her docket. But consider this: the District Attorney’s Office is a party to every criminal case. That means they are a party to every single case on Judge Samuels’ docket. If the District Attorney papers Judge Samuels on every case, Judge Samuels will have no criminal cases at all. That is what Joseph Iniguez is ordering. He specifically says that no other cases should be assigned to her. He is ordering his prosecutors to use Penal Code section 170.6 to take Samuels entire criminal docket away.

Once these orders are carried out, and Judge Samuels’ docket is gone, she is useless as a criminal judge. She can’t be fired, because she is herself an elected official. The only place she is useful is Civil Court and Traffic Court. That’s where she will be moved.

Gascon and Iniguez clearly want to make an example of Samuels. No judge wants to lose their case load, be moved out of their courthouse, and forced to preside over civil or traffic cases. Some judges have never even practiced in these areas of law. In fact, most criminal judges are either former public defenders or former district attorneys. Most of them have no idea what goes on in civil court and shouldn’t be there. That’s the threat that Gascon is using.

The tactic worked. On December 17, Bill Melugin from FOX LA reported that Gascon will no longer be papering Judge Samuels because “she has subsequently started dismissing enhancements in accordance with his new policies.”

Why Is This a Big Deal?

Issuing an order to your employees to violate the law is a big deal. That’s what Gascon did when he ordered prosecutors not to file strike enhancements. Then threatening to fire them if they did not comply was an even bigger deal. Break the law or lose your job is a choice that no one should have to make. Still, the judiciary is an independent branch of government that is supposed to check the executive branch in these situations. So threatening the judicial branch is not only immoral but threatens our separation of powers. Those who think Gascon is a reformer should stop and ask themselves why he has to break the law threaten virtually every other person in the criminal justice system in order to accomplish his goals. Has he gone to far? Just ask Judge Shellie Samuels.

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