Gascon Policies Remain Despite Being Told By His Own Appellate Department They Are Illegal

The Metropolitan News-Enterprise has an excellent article discussing the dramatic changes at the Los Angeles County District Attorney’s Office. The most dramatic revelation is that Gascon ignored warnings that his policies were illegal.

District Attorney George Gascón has been told by his office’s Appellate Division that the appeals courts would find no merit in his contention that a judge is obliged to blot out a strike allegation whenever a prosecutor requests it, and has been warned that his effort to thwart the Three-Strikes Law by ordering that no enhancements be sought based on prior strikes could be subject to a challenge in a taxpayer’s action, internal documents show.

The warnings came almost two weeks ago, and no change has been made. The article details two memos, one on December 9 and 10. They set out the requirement that prosecutors file strikes.

By their plain terms, [two Penal Code provisions—§1170.12(d)(1) and §667(f)(1)] require the prosecution to plead and prove all known strike priors.

The memo cites a Jan. 19, 1996 opinion by then-Acting Presiding Justice Norman Epstein of this district’s Div. Four (later presiding justice, now retired) in People v. Kilborn which holds constitutional the limitations on a district attorney’s charging discretion.

Thus, absent a legislative change or intervening case law, the prosecutor must charge all known strikes, […] The district attorney’s office has no legitimate interest in having a policy directly contrary to law.

Gascon responded by declaring the Three Strikes Law unconstitutional. His appellate department, however, made quick work of that. The December 10 memo discusses the law, and concludes, “the prosecutor’s general belief that the Three Strikes law should not be enforced would probably not provide a valid judicial reason to strike a strike.”

This Advice Was Ignored

Notwithstanding that advice, on December 15, Gascon issued an “amendment” to Special Directive 20-08 containing a script for deputies to read.

The script declares that Three Strikes is unconstitutional. The script omits the overwhelming number of cases that are contrary to this position. That led to another memo from the Appellate Department, reminding Gascon that California Rules of Professional Conduct Rule 3.3 “requires attorneys to cite any known, adverse authority.” The script therefore violates ethics rules.

Despite this, Gascon did not change the script. His order to his deputies stands unchanged. This puts them in the unenviable position of choosing between following their boss’s orders or the ethics rules.

LADA Can Be Sued

The memos discuss the consequences of noncompliance with the law. They analyzed several court of appeal cases and conclude, “it is at least plausible that the office would have to defend its policy in a civil case.”

This warning is particularly dire, given the heated criticism LADA has recieved from victim’s rights lawyers. For example, Sam Dordulian has been harshly critical of Gascon’s new policies and is speaking out:

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