Gascon Orders His Prosecutors To Go Soft on Defendants For Virtually Any Conceivable Reason

LA District Attorney George Gascon, on his first day, gave his employees several illegal orders. Judge James Chalfant recognized this, and issued a preliminary injunction against Gascon to prevent him from enforcing these orders. Rather than comply with the injunction, Gascon waited two days and issued new illegal orders, then called it compliance. His prosecutors were left feeling vindicated but still in danger of losing their jobs just for complying with the law.

Specifically, Judge Chalfant ruled that prosecutors must plead and prove strikes. They cannot move to dismiss them unless there are “extraordinary circumstances.” This has been the state of the law for decades.

Gascon did not take this lying down. He decided to ignore three strikes despite the judge’s order. Instead of good faith compliance with the judge’s orders, he decided to try an end run around them. So he issued new orders requiring his prosecutors to dismiss strikes for any of eight “factors.” The problem is that dismissal for any one of these reasons is very different from dismissal for “extraordinary circumstances.”

The eight factors are found in The Committee on Revision of the Penal Code’s proposals.

Gascon Wants His Prosecutors to Go Soft Even Though It’s Illegal

Nowhere in the injunction did judge Chalfant say that Gascon could compel his prosecutors to make a motion to dismiss or withdraw prior strikes if “one factor” applies or if the “presumption of dismissal or withdraw” applies.  The opposite is true.  Unless legal grounds apply, as required by section 1385, prosecutors cannot be compelled to bring these motions.  To do so is a violation of the law and ethical rules.

Ordering all LA prosecutors to dismiss based on section 1385 and an individual case review is appropriate and is the law. But qualifying this review “pursuant to the considerations set forth by The Committee” violates the law and the temporary injunction. Even worse is Gascon’s presumption of dismissal if even one factor applies. This is the opposite of “extraordinary circumstances” demanded by the “ends of justice.” It’s unethical and illegal.

The Eight Reasons to Go Soft on Defendants

Even if the order weren’t illegal, it is impossible to follow. The eight factors listed in the report are so vague as to be nonsensical.

For example, factor two says, “The current offense is connected to mental health issues.”  Prosecutors do not know what “connected to mental health issues” means, nor do they have the necessary materials in some cases that may be otherwise privileged or possessed by defense attorneys and not shared with them.  Is “impulse control issues” a mental health issue? What about psychopathy? Are prosecutors required to go soft on psychopaths because they have mental health issues?

Factor four says, “The current offense is connected to prior victimization or childhood trauma.”  Prosecutors do not know what “connected to prior victimization or childhood trauma” actually means, nor they have ever been trained in “childhood trauma.”  And what does this say about the thousands of victims who have experienced horrible trauma and have been victims of countless crimes, yet are law-abiding, productive members of society? 

Factor six says, “Multiple enhancements are alleged in a single case or the total sentence is over 20 years.”  Prosecutors do not know if the “20 years” is with or without allegations and priors.  And what happens if a court has already denied a motion to dismiss?  

Factor eight says, “application of the enhancement would result in disparate racial impact.”  This is controversial to say the least. Prosecutors do not know what that means, and do not know how to make the appropriate comparisons.  They have received no training on this specific topic.  Do they compare cases and defendants in just their current assignment, in other assignments, in other jurisdictions within and outside Los Angeles County, in California as a whole, or even in the entire United States of America?  What if a defendant is of mixed race?  Prosecutors are confused because they are required, on every single case, to treat each as a unique case based on individual facts, circumstances, context, defendant, victim, and prior criminal history (if any).  The race of a defendant and victim, unless specifically relevant to the crime or allegation (e.g., hate crime) is wholly irrelevant to this analysis.

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