Five Check Boxes

In 2008 I convicted a man of shooting at his ex-girlfriend and several other people, nearly killing them all and wounding one in the stomach. He shot at them from the second story of a flower shop in a charming but blighted downtown neighborhood. He lived with his mother on the second floor of this once attractive building, in a filthy apartment overflowing with clutter and unsecured guns. At trial, the man claimed that the people he shot threatened him, but this claim was so outlandish and contrary to the facts that not a single juror believed him. His mother was a constant presence at the trial and would later die in a car crash on her way to visit him in prison. He used her gun to do the shooting. The crime stuck in my mind because of the mother’s death, a tragedy that seemed to follow tragedy, like one domino falling on another.

I recently received a Petition for Resentencing from this same defendant. The form was just two pages long, with blanks for the defendant’s name and check boxes for his claim. The shooter checked each of the five boxes and mailed the form to the public defender and to me. Even though I left the assignment long ago, and no longer live work anywhere near the old flower shop, I am responsible for post-conviction litigation on all my trials.

The defendant ticked off some check boxes on a form. Sadly, in this small space, he showed me that he was still trying to lie his way out of trouble. He claimed that he was “convicted… of attempted murder under the natural and probable consequences doctrine.” He was not. He was convicted of murder under the “fired bullets into the body of a person he intended to kill” doctrine, which is not actually a doctrine, it’s a fact that I proved to twelve people beyond a reasonable doubt. This evident even without looking at the evidence: the jury made a specific finding that he personally fired a gunshot that caused great bodily injury to another human being.

As a result, of the shooter’s five check boxes, I have to write a legal brief that will end up about 10 pages long with several additional pages of exhibits and a proof of service. The whole process of drafting this response, in contrast to the mere seconds it took him to draft the petition, will take me hours. Because I have regular duties that took up my work day, I have to draft it now, after hours, with no overtime available and only the old-fashioned and obsolete idea that a position of public trust requires small sacrifices. A sacrifice of a few hours of family time by me, but a sacrifice by you too. The fifth box asked the court to appoint the defendant a lawyer, at your expense, to argue his frivolous claim.

Gascon Team Member Gets Sweetheart Deal From Gascon

Gascon’s special assistant Mario Trujillo gave a sweetheart offer to the client of Traci Blackburn, who donated to his campaign. The offer was apparently negotiated by Tiffany Blacknell, who is a Gascon official. Here’s how it happened.

Traci Blackburn was representing a defendant who was accused of committing murder and multiple attempted murders. On December 15, 2020 she appeared downtown in front of Judge Mark Arnold. She had a hearing on the case with Deputy District Attorney Jeffrey Herring. Although the case was eligible for the death penalty, Herring followed Gascon’s controversial directives to move to dismiss the enhancements. If granted, this would change the case from a death penalty case all the way down to a second degree murder.

Family Members Cry as LADA Dismisses the Enhancements

Judge Arnold asked if dismissing the enhancements was in the interest of justice. Herring gave his new boss’s position. The victim’s mother, father, sister, and other family were at the hearing. They spoke to the Judge Arnold, who tried to explain what was happening. “If he’s found guilty and those allegations were true, yes. It would reduce his sentence significantly, a lot.”

Judge Arnold asked, “What do you think about eliminating all of these allegations that Mr. Herring’s office is looking to eliminate?” A family member replied, “I’m sorry, I don’t think it’s fair.” The judge said, “Do you understand what I’m asking you?” Apparently the family member began to cry and the judge came down off the bench to console them.

Judge Arnold asked, “Why are you crying?” The victim said, “I just feel that we need justice and he needs — it’s not fair that he — doesn’t get as much years.” The judge asked “So you don’t want to see these things get dismissed?” She replied, “No.” The victim’s mother said, It’s not fair that they would lower many years. To me it doesn’t seem fair because – because somebody who is doing harm to people, they should pay.”

Judge Arnold denied the motion to dismiss. “I don’t believe that your stated reasons justify dismissal in the interest of justice.” At this point, Ms. Blackburn jumped in but Arnold cut her off, citing the law regarding 1385 dismissals. He also correctly pointed out that the gun enhancements may only be stricken at the time of sentencing. Then Arnold gave Ms. Blackburn a chance to argue, even though she did not make the motion. She said that the DA can charge a case however they want, and the court cannot interfere. This is George Gascon’s position. “If the charging agency says that they want to delete the charges, I think that’s within their purview. For the court to step in and say they won’t do it” is illegal. Judge Arnold replied, “Tell me any case that says that if they move to dismiss an allegation or a charge, that that in and of itself justifies dismissal.” Ms. Blackburn did not have a case and the judge’s ruling stood.

The Conflict of Interest

Judge Arnold asked Mr. Herring, the prosecutor, if he’d like to go over the 28th. Then, to everyone’s surprise, Blackburn, the defense attorney, told the judge that Mr. Herring was off the case. This was after Mr. Herring hade made his appearance, made a motion, and discussed the case with the victims.

Blackburn informed the court that she had reached a deal to settle the case. Apparently, no one was more surprised than the prosecutor, Mr. Herring. Blackburn told the court, “Mr. Herring is not the attorney of record on this case, it was Mr. Trujillo.” She’s referring to Mario Trujillo, an early supporter and member of Gascon’s new administration. The assigned DDA, Mr. Herring, who was present, said, “It’s news to me that I’m not the attorney of record on this case.” The judge was also confused.

Blackburn said that Mario Trujillo had conveyed her a new offer of seven years. DDA Herring said, no, his supervisors were not making an offer. He said, “I’ve also been told from a separate set of supervisors there is no offer, and that’s why we are in a conundrum today.” Apparently Herring and his supervisors intended to try the case, not settle it at a discount. Blackburn told the judge that despite what the DDA said, his office was making an offer. It came from Mario Trujillo.

Tiffany Blacknell, who is mentioned in the transcript, is another attorney in Blackburn’s office. Although Tiffany Blacknell is a public defender, she worked hard to get George Gascon elected and was on his Public Policy Committee as far back as January 2020. She came under fire in August for calling LAPD “barbarians” and an “occupying army.” She has advocated defunding the police and abolishing prisons.

Tiffany Blacknell and George Gascon. Photo Credit: @lwyrchc on

It is not yet known what her role was in this seven year offer. On its face, it appears that she discussed settlement of this case with the DA’s office at the highest level. It’s unclear if she merely delivered the offer to her colleague Blackburn or actively negotiated it. Blacknell appears to be working for Gascon on his policy goals while working against Gascon for the defendant in this case. Obviously, this seems to put her in a precarious ethical position.

Another problem appears in the transcript. If Trujillo and Blacknell negotiated a disposition behind closed doors, they may have violated Marsy’s Law, as it appears that no one consulted the victim’s family. Indeed, a family member appears on the record and seems very upset about what’s going on. Mr. Herring is the only one that complied with the law and he had no idea that Trujillo and Blacknell were negotiating behind his back.

Here’s the complete transcript:

Is This a Sweetheart Offer?

Herring is the assigned prosecutor on this case. He and his supervisors did not make an offer to Blackburn and her client. In the criminal courts, a “no offer” case is a case where the prosecutor seeks the maximum sentence after trial. The maximum penalty for murder and multiple attempted murders is obviously higher than 7 years.

By contrast, Trujillo’s offer is a fraction of the defendants’ exposure at trial. To him, this was clearly not a “no offer” case. Still more puzzling is why Trujillo decided to undercut his own colleagues. And finally, why did Trujillo not tell Herring what he was doing?

Is This a Scandal?

Traci Blackburn’s conduct as a defense attorney is problematic. She donated money to Gascon and then asked him for leniency. To most people, this looks like a conflict of interest. Tiffany Blacknell’s conduct may be even worse. She may have been working for the DA while negotiating against him on behalf of a criminal defendant. It looks like she used her access to DA administration to go over the head of the assigned attorney to get a sweetheart offer. Court watchers immediately suspected Trujillo of giving Blacknell and Blackburn a lower offer than the defendant deserved because they worked to elect his boss.

One thing seems clear: high-ranking Gascon officials should not be representing criminal defendants or giving away plea bargains to their donors.

After the Transcript Leaked, None of the Involved Parties Could Be Found

Bill Melugn at Fox 11 reported on the follow up hearing, which took place on December 28. Judge Arnold ordered that hearing to clear up who was the prosecutor and what was the offer. But no one showed up. Trujillo, Blacknell, and Blackburn simply did not come to court.

A supervisor from Mr. Herring’s gang unit did show up. He told the judge that any offer made by Trujillo is invalid because it never went through him nor the proper channels. Judge Arnold asked whether Trujillo called him to talk about the case. He replied, “not once.” When Judge Arnold was told the deal was invalid, FOX 11 reports that he said, “It’s a good thing…because there’s no way I could look at myself in the mirror with a plea bargain of seven years on this case.”

Attorney Sam Dordulian is representing the family pro bono. “That’s the kind of back door underhanded unethical deal that is just completely inappropriate, and yet it was done on this case, or yet they tried to do it.” said Dordulian.


Traci Blackburn, the defense lawyer, was formerly the public defender’s training coordinator.

The LA Times published an article with a detailed look at the underlying crime and the December 28th hearing.

Can George Gascon Just Not File Strikes?

One of the most controversial policies implemented by newly-elected district attorney George Gascon is a directive to not file enhancements under the Three Strikes Law. You might remember this law: it provides that when a person is convicted of a third serious or violent felony they are “out,” meaning sentenced to 25 years to life.

Three Strikes has other provisions you may not have heard of as well. If you have been convicted of one strike, any subsequent felony conviction’s punishment is doubled. Strikes also keep people in prison for more of their term. With a strike the good behavior credit you get in prison is limited to 20% of your sentence. Without a strike, you could get much more, up to 75% credit. In other words, if you are sentenced to 10 years, you could get out in 2.5 years if you don’t have a strike. But you serve 8 years if you do.

The Directive: Don’t Plead and Prove Strikes

Three Strikes is an “enhancement.” It must be plead in the complaint. In other words, you must write down in the complaint that a defendant was previously convicted of these strikes on these dates and is thus in even more trouble. Then, before conviction, you have to actually prove this happened. You can use RAP sheets and prison documents and other things. Gascon has ordered his deputies to stop pleading these enhancements. In other words, if you find out that someone has a previous strike, you should just ignore it.

The Constitution: Plead and Prove Strikes

Here’s the problem. Article I of the California Constitution, at section 28(f)(4), says this:

 Use of Prior Convictions. Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.

Cal. Const. Art. I, Section 28(f)(4).

You shall use strikes without limitation. “Shall” in the legal context means “must,” as in “no option.” There is no exception to this provision in the California constitution. It tells prosecutors: you must do this.

The Penal Code: Plead and Prove Strikes

The Penal Code has similar provisions.

Notwithstanding any other law, [Three Strikes] shall be applied in every case in which a defendant has one or more prior serious or violent felony convictions as defined in subdivision (d). The prosecuting attorney shall plead and prove each prior serious or violent felony conviction…

(Pen. Code section 667(f)(1).)

Because it’s the Penal Code, they put the exact same thing in another place, just for good measure.

Notwithstanding any other provision of law, this section shall be applied in every case in which a defendant has one or more prior serious and/or violent felony convictions as defined in this section.  The prosecuting attorney shall plead and prove each prior serious and/or violent felony conviction…

(Pen. Code section 1170.12.)

Notice that “shall” pops back up in here. There’s one important difference between these laws and the California constitution. Prosecutors may ask the court to dismiss the strikes once they are plead, if it is “in the furtherance of justice.” But it’s up to the court, meaning the judge, to decide whether to do this. It’s not up to the prosecutor. It doesn’t just happen automatically. The judge has to agree that it is “in the furtherance of justice.”

Follow Orders and Be Disbarred or Follow the Law and Get Fired

This is a big deal because the new DA is ordering his deputies to violate the California Constitution. That puts them in a tough spot. They could choose to follow orders and not file strikes. But that has consequences. First and foremost, prosecutors don’t want to break the law. In fact, that’s the exact opposite of thing they signed up for. Even if you leave out the important principles at issue here, there are still pitfalls. Following orders puts them at risk of a bar complaint. This has happened already to the Head Deputy in Antelope Valley. Just imagine that your family member was shot but lived. Imagine the shooter had two strikes. The shooter was facing 25-life, or more, under the previous administration. Now, without the strikes, they are facing five years served at 50% – just 30 months prison. You can’t even get a law degree in 30 months. Victims are – and should be – upset about this. Deputies who follow orders have to face these victims on virtually every case.

Now imagine that you don’t follow orders. The constitution trumps an office directive, after all. You’ve read up on things, and you’re trying to do the right thing. Well, you are going to get put on a list. The defense bar is keeping a list of prosecutors that don’t go along. They are providing that list to the new DA. If you find yourself on that list, you can be disciplined or even fired for insubordination. Rumor is that your boss will be fired to for failing to control you.

Gascon has put prosecutors between a rock and a hard place. Follow his orders and be disbarred, or follow the law and be fired.

CDAA Letter

On January 12, 2021, the California District Attorney’s Association published an open letter discussing this issue. You can read it here:

The letter focuses more on the wisdom of the “no enhancements” policy, rather than its legality, but it is still worth reading.


A Superior Court Judge ruled that Gascon must file strikes. He issued a new policy to that effect.

Public Defenders Blacklist LA Prosecutors

George Gascon recently replaced Jackie Lacey and brought dramatic policy changes with him. One of the most controversial is that Gascon ordered his prosecutors not to file any sentence enhancements for any reason.

The most famous sentence enhancement is the Three Strikes Law. Gascon has been clear from the beginning of his term that this law will not be used. His orders are to dismiss the enhancement from any pending case in which it applies.

Many prosecutors are reluctant to follow this order because they believe it is illegal. Whether they are justified is an important question. But the more salacious issue is how the defense bar has inserted itself into this dispute.

The public defender, alternate public defender and other criminal defense lawyers are keeping lists of prosecutors who refuse to dismiss strikes. The rumor goes on. The defense bar will provide these lists to Gascon and his administration so that these prosecutors, and their supervisors, can be fired. The prosecutors will be fired for insubordination. The supervisors will be fired for failing to control their employees. The rumored purpose of these firings is to create job openings that can be filled with prosecutors who believe in Gascon’s changes.

Shame on the defense bar for acting this way. They should not be creating blacklists. They should not inject themselves into disputes in someone else’s office over internal policies. One lawyer should not try to get another lawyer fired over a legal disagreement.

Criminal court has been different than civil court, an environment that is notoriously uncivil. Every little transaction between civil litigators is fraught with aggression, lack of mutual trust, an unprofessionalism. As a result, civil litigators waste their clients time and money with pointless bickering and posturing. By contrast, criminal lawyers, especially public defenders and prosecutors, often work together day after day in the courtroom. They know each other. Importantly, they have a chance to build trust with each other. That can lead to real communication, not the pointless bickering we find in the civil system. It helps the system work in a just way.

What the public defenders are doing now will break the trust and civility that used to exist in Los Angeles. An entire office is engaged in a coordinated campaign to get portions of the other office fired.

Wasting Time

It’s a common observation among lawyers that civil practice is much less civil than criminal practice.  I was listening to AM radio and I heard a lawyer (specializing in HOA disputes) describe himself as “psychotically aggressive”.  You don’t see that very often on the criminal side.  Virtually all criminal cases are prosecuted by Deputy District Attorneys, and are defended by public employees as well.  The defense bar is overwhelming represented by the public defender, the alternate public defender, and the alternate alternate public defender, which in California is call the bar panel.  Private attorneys are extremely rare.  Generally, a criminal lawyers try cases against people they know pretty well, and that they will have to work with again in the future.  That makes the kind of scorched-earth tactics you might see in an HOA dispute less effective.  But there’s another reason – an overlooked reason – that the criminal side is more collegial.  And that’s the waiting.

There are some days where half of my time is spent sitting around waiting for things to happen in court.  This morning, for example, I had three appearances on three different cases in three different courtrooms. There were six different defense attorneys that I was waiting for. It took almost two hours to get all of the right people in the right courtrooms at the right time. Often times, I’ll find the right lawyer in the right courtroom but he hasn’t spoken to his client yet. Or, the client hasn’t been brought to court by the sheriffs. For the client refuses to come to court, and has to be forced to be extracted. Sometimes, I’ll find one lawyer you need to defended case, but not the other.

I try to work while I’m waiting for my cases to be called. I’ll bring my laptop with me. But the backwards state of our office’s record-keeping prevents me from being productive. Specifically, each of my cases has its own physical folder. This folder is kept in a cabinet in my office. In order to read what’s in the file, I have to have the file. But, I can’t carry around my filing cabinet with me. So unless I know what I need to be doing, and unless I have that specific file, I can only work on projects that require just a laptop.  But there aren’t many projects like that, unfortunately.

This problem is particularly frustrating when they judge wants to handle your matter quickly. Judges become frustrated when a lawyer wasn’t in court when the judge thought the lawyer should be. Each judge asks, why didn’t you come to her court first. They get extra riled up when they are in trial and have to squeeze their calendar in to a shorter portion of the day.

What happens during all of this waiting?  What happens when you have several lawyers – verbal, social, type A lawyers, sitting around with with nothing to do?  Lots and lots of talking, joking, bullshit, and war stories.  You get to know people.  You have a laugh.  It’s a shame that the taxpayer is footing the bill.  But it does make the practice that much more enjoyable.

Lunch in the Wild West

A few months after finishing my first attempted murder I was sitting around another courtroom waiting for my case to be called.  I watched another DA give a closing argument in a murder case.  The funny thing was; the murder took place in the same alley as my attempted murder.  The exact same alley!  Right behind the local diner.  I spoke briefly to the prosecutor, who told me that his case went down a few months before mine did.  He blames the violence on a bar that empties into the alley, a notorious bar where gangsters hang out.  My case, however, was more about domestic violence than drunken gangsters.

I was shocked.  I felt like these two cases gave me a window into the volume and frequency of violence in the communities that we serve.  It’s a very different situation from where most of us live.  The alley in question is so pockmarked with bullet strikes that it resembles the Wild West.

I went back to my office and told the story to a couple of coworkers.  They seemed to find it interesting, but not too interesting.  The discussion turned to where to go to lunch.  Before I could even jump in, the choice was unanimous: the local diner.

A Bad Deal

There didn’t seem to be anything out of the ordinary when we first looked at the student interviewing with us for a law clerk position.  He a pale, skinny man in his late 20s at the top of his class at a local law school.  The interview was pretty normal until the very end, when our candidate asked about the background check he would have to pass if he were hired on.  We explained that misdemeanor criminal convictions, like DUIs would probably not disqualify him.  He said that he had a DUI, but that it was a felony.  Neither my coworker nor I were very sophisticated about employment law; neither of us asked any follow up questions, probably on the assumption that we didn’t want to know more.  Felony DUIs in California happen under two circumstances.  Either you get three misdemeanor DUIs and your fourth is a felony, or your DUI causes someone injury.  But in the moment, neither of us though about it much: we figured he would either pass a background check or he wouldn’t.

Later in the interview, the candidate mentioned that he worked for a non-profit expunging convictions.  This brought me back to his question about our background check, so I asked him why he didn’t expunge his own conviction.  He said that he looked into it but the best he could do was a certificate of rehabilitation.  He said that you cannot get a conviction expunged if you did a certain amount of time in state prison.  We were shocked that this candidate would have gone to state prison on a DUI.  We asked him about that, and he said that the DA made him a bad deal.  We thanked him for his time and finished the interview.

But something about what happened was stuck in my mind.  We talked it over with another prosecutor, a ten year veteran, after the interview.  As we were relating the story, and the candidate’s strange answers, a look of recognition seemed to come over his face.  He asked, “what’s this guy’s last name?”  We told him.  “I know that guy!  I remember that guy!”  Ten years ago, when this prosecutor was new, he was assigned to a preliminary hearing department and actually handled this candidate’s case.  We looked it up  in the computer, and he was right.  And what was even more extraordinary was that our colleague remembered the facts.

The candidate had a drinking problem when he was a younger man.  Ten years ago, even before he was legal drinking age, the candidate had driven drunk.  He crashed his car into a house.  The car entered the bedroom window of the house and landed on the bed.  The bed was not empty.  The car crushed a person lying in the bed, breaking their back.  The candidate, instead of remaining at the scene and aiding the victim, fled.  He didn’t even call 911 to let them know that an ambulance was needed.  When he returned home, he saw his father, who suspected that something was up.  He asked his son if anything had happened, and the candidate drunkenly mumbled that he had crashed his car.  His father feared the worst, and went out to look for his son’s crashed vehicle.  He found it crashed into a house.  The father approached the police and told them that the vehicle belonged to his son.

Later, in court, the father changed his mind.  He hired a lawyer for his son, who rejected the people’s offer of 16 months at an early hearing.  The father said he regretted ever cooperating.  They did the preliminary hearing, which was held to answer, and then asked for the early offer again.  The DA refused.  The candidate ended up pleading to high term on a DUI with injury, with the agreement that the DA would strike the punishment for the great bodily injury enhancement.  He was sentenced to three years, and did about half of it.

“That’s Not A Courtesy I Extend”

I had a hearing set in a robbery.  The victim arrived in the courtroom after I left to handle another matter in another courtroom.  When I was gone, the public defender approached the victim and asked to interview her, which she did.  The investigating officer arrived and noticed the two of them in an interview room.  He entered and asked if the public defender had told me that she wanted to interview the victim.  She said she hadn’t.  The officer told the victim to break off the interview.  This caused the officer and the public defender to get into a shouting match.  Meanwhile, I was cluelessly handling other matters downstairs.

The public defender ran into me downstairs and was the first to tell me what had happened.  She pointed out that it was not illegal for her to interview my victims (even though it is illegal for me to talk to her defendants).  Told her I agreed with her on the law.  Then I said, “I would just ask you, as a professional courtesy, to let me know when you want to speak to a victim.”  She said, “that’s not a courtesy I extend.”  We left it at that.

Revolt at LADA Training

The Los Angeles County District Attorney’s Office will occasionally do a training on Saturday for its prosecutors. Since the election of George Gascón, topics have been on cultural rather than legal issues, such as Racial Justice and Transgender Awareness. This Saturday, even though LADA has 800 of the countries best prosecutors, Gascón brought in an…

I was annoyed, of course.  I blew off some steam with the investigating officer upstairs.  But the interaction resurfaced on the commute home, where all forgotten annoyances resurface.  What is the proper response to this?

I could let it go.  She’s right on the law.  Defense counsel can interview victims.  It’s important to get along with people you work with.  Even defense counsel.  Prosecutors are supposed to hold themselves to a higher ethical standard than defense counsel.  In practice, this seems to mean letting them get away with all sorts of underhanded things.  The defense bar seems to be so used to this that they get angry when I even suggest that both the prosecution and the defense should be treated equally.  I could let her get away with this.

I could retaliate by withholding my own “courtesies.”  One thing in particular that popped into my mind was changing my existing practice when it comes to witnesses.  Now, I allow defense counsel to interview my witnesses, and even encourage it, as long as I am present.  I could no longer do that.  Instead, I could always advise them not to.  I could explain to the witness that this defense lawyer’s job is to make you look untrustworthy and stop a fact-finder from believing you.  I could explain that this lawyer would have consider letting their victimizer out on the street to be a successful result.

I could take the defense interview option off the table by having victims wait to testify in my office.  This may inconvenience me in 100 cases and solve the “no courtesy” problem in one case.  In other words, it might not be worth it.  But it would also solve a related, and even more annoying problem: gamesmanship over witness attendance.  How often has a defense lawyer based their decision to take a plea on whether a witness is present?  This seems to be a bad way to practice law: justice for only those victims that can come to court.  But I digress.

I’m still annoyed, even as I sit here today, long after the fact.  Maybe not in the right frame of mind to make a decision.   But at least I got to spend the commute thinking about delicious retaliation.

Prosecutors Love Their Badges, Which They Should Never Show Anyone

Not every prosecutor gets a badge, but those that have them love them.  They are a shiny symbol of authority (and maybe danger) that most bookish law students never thought they might have.  When they are given out they are accompanied by the stern warning that you should never try to use them and God help you if you do.  I did a little investigation into our (seemingly contradictory) attitude towards these badges and found out something about the potential for abuse, the danger they pose, and the unexpected benefits they might provide.

The internet is full of cautionary tales.  Predictably, people try to use their badges to get out of being arrested.  A Dallas County Assistant District Attorney was fired after flashing his badge during a DUI stop.  He showed his prosecutor’s badge to police instead of his driver’s license.  He then made several racially charged comments (while wearing what appears to be a fur coat).  His lawyer explained that prosecutors are specifically told not to misuse their badges.  The same thing happened to a Bexar County Assistant District Attorney in San Antonio.  And to a San Francisco prosecutor, who asked for a pass on his DUI because he was “well known” among local police officers. Obviously, that did not work, and the man was convicted of driving under the influence and other crimes. The incident resulted in a California Bar Journal article. The State Bar Court also got involved, as they should. Their opinion contains the following helpful definition:

Respondent engaged in the practice known as “badging.” Badging, involves the presentation of one’s employment identification by an individual, such as a judge, attorney, policeperson or a fireperson, to a law enforcement office in order to gain special treatment and/or avoid arrest based on one’s status as a public servant.

In 2013, a Florida prosecutor tried to use his badge to get into a dance club.  After being told to leave by bouncers, the prosecutor “flashed his gold badge at [the bouncer] and stated, ‘we work on the same side.'”  He also said, “I will do what I want” and “I am the one who will dictate how things go.”  Another Florida prosecutor used his badge to gain free admission to a strip club.  A few hours later, he used the badge to avoid paying a 15% credit card surcharge on lap dances he purchased.  He was later fired. The manager had to remind prosecutors “there is nothing more dangerous than a person who defends the law and then abuses the law and his position for self-gain.” Nothing is more embarrassing than getting an ethics check from a guy who runs a strip club. You can read the prosecutor’s abject apology letter here.

There’s more.  A Georgia Assistant District Attorney ate a hot dog without paying.  He was confronted by police and denied eating the hot dog despite the fact that he had ketchup and mustard on his shirt.  The officer told him to just pay for the dog, but the prosecutor pulled out his badge and cautioned the officer, saying, “you need to be careful” and “are you sure you want to do this?”  

In 2014, a District Attorney’s brother flashed an honorary DA’s Office badge at officers as he tried to explain why they shouldn’t do anything about the incapacitated woman slumped in the back seat of his car. The brother had groped the woman at a restaurant and somehow gotten her into his car. He was sentenced to two years in prison. The district attorney who gave the brother the badge in the first place was also convicted of corruption and sentenced to five years in an unrelated matter.

Carrying your badge in your wallet may lead to more severe consequences than embarrassment, job loss, and even prison.  Gil Epstein, an assistant district attorney in Fort Bend County, Texas, had just left Houston’s Jewish Community Center after playing basketball in September 1996 when a robber confronted him. The 21-year-old robber, was already on parole after committing an attempted murder.  The robber shot Epstein after he saw Epstein’s prosecutor’s badge in his wallet. The badge was found lying at Epstein’s feet after the murder.  Epstein’s killer, Marcus Cotton, was convicted of murder in 1997 and later executed.

It’s Not All Bad

The Boca Raton News has my favorite badge story, especially after reading about the tragedy of Gil Epstein’s murder.  I’ll quote the entire thing:

“Manhattan, Kan. – A bullet-blocking badge saved a masked gunman who fired from a passing pickup as the prosecutor drove to work, officials said.  The gunman, crouched in the back of the truck, fired fire shots through the windshield of a car driven by Eric Stonechiper, a Geary County special prosecutor.  One bullet hit Stonechiper, 32, in the arm, and three lodged in the headrest.  The fifth bullet hit the drug task force badge in a chest pocket.  Stonechiper was treated and released from a Manhattan hospital and placed under police protection.”


Some prosecutor’s offices used to give badges out to the press. I can only assume it led to the same kind of problems for reporters.

Police horses get a badge. I think the concept is basically the same for giving badges to prosecutors.

San Jose police horse badge

Wives get badges too. They’re the only ones that actually deserve them.