Many people have asked me if I watched the recent PBS documentary about Larry Krasner. So I started watching. I immediately noticed that the documentary lacked context about crime in Philadelphia. Is it high? Is it low? Context matters. Crime rate is perhaps the most important and basic contextual information that viewers should have.
Philadelphia consistently ranks above the national average in terms of crime, especially violent offenses. It has the highest violent crime rate of the ten American cities with a population greater than 1 million residents. Many crimes are not reported, so an estimate of the actual crime rate can be difficult. But homicide is virtually always reported or discovered. So criminologists often look to the homicide rate as the most accurate way to estimate the overall crime rate. Philadelphia’s homicide rate is awful.
Number of Homicides
Philadelphia Homicide Rate
Philadelphia compares badly to California and the rest of the country.
The best comparison would be to the City of Los Angeles. Philadelphia has nearly four times the murder rate of Los Angeles. That is an incredible number. Compared to the California and national homicide rate, Philadelphia fares even worse. Based on the statistics, you are almost six times as likely to get murdered in Philadelphia than the State of California.
These statistics show that crime is high in Philadelphia. What role does Larry Krasner have in this failure, as District Attorney? Statistics are hard to come by in this area. But we should remember the basics. First, prosecutors can lower crime by incapacitating criminals in prison. An imprisoned criminal is not out committing homicides, obviously, and prosecutors have the largest role in determining sentence length. Second, Krasner does not want to exercise this power. He does not believe in long-term incapacitation. Third, the recent national crime wave has hit Philadelphia harder than the nation as a whole, harder than California, and harder than Los Angeles. A reasonable person should ask, “Is Krasner’s failure to incapacitate criminals part of the reason why Philadelphia is suffering?”
I’m sure there are more complicated issues raised by the show. But when I think about the big picture, I’d like to know whether Krasner is doing his job, and it looks like he isn’t.
The shooting death of Daunte Wright has put police shootings back in the news, at the same time as the public awaits a verdict on the killing of George Floyd.
One frequent observation in law enforcement circles is that media coverage of these tragedies has led people to overestimate the number of black men killed by police. Even one is too many. But exactly how bad does the public think the problem is?
Police Brutality Against Black People Happens Much Less Than the Public Thinks
According to Mapping Police Violence, 27 black men were killed by police in 2019. But a study by the Skeptic Research Center investigated how knowledgeable people were when it comes to fatal police shootings. The results are depressing; the public massively overestimates the number of police killings of black men.
The available data on police shootings of unarmed Black men is incomplete; however, existing data indicate that somewhere between 13-27 unarmed black men were killed by police in 2019. Adjusted for the number of law enforcement agencies that have yet to provide data, this number may be higher, perhaps between 60-100. Yet, over half (53.5%) of those reporting “very liberal” political views estimated that 1,000 or more unarmed Black men were killed, a likely error of at least an order of magnitude.
The researchers put it dryly. “Our overall findings indicate that people are uninformed regarding the available data on fatal police shootings in the US.”
The media has the power to shape perceptions — and when they consistently prejudge, distort and exclusively focus on high-profile cases involving white police officers and black suspects (such as Jacob Blake most recently), it creates an illusion of pervasive police violence perpetrated toward African Americans. Meanwhile, unarmed white people killed by cops […] are ignored by the media. Consequently, the public likely perceives this problem to be almost nonexistent.
Political science doctoral candidate Zach Goldberg has shown in his research, unarmed black victims of fatal police shootings generate staggeringly nine times as many news search results compared to white victims.
People who get their news from Twitter might also read something like this:
It is inaccurate to say that there is an endless list of black lives lost to police violence. But according the the research, many people believe it.
There is No Evidence That White Officers Routinely Kill Black People Out of Racist Animus
As John McWhorter points out in an excellent article, police violence is not a white-on-black problem. People of every race are killed by police, sometimes for good reasons and sometimes for bad reasons.
Despite these facts, the Skeptic Research Center Report finds that everyone overestimates the percentage of people killed by police that were black. This effect is particularly pronounced amount political liberals, but it is not exclusive to them.
Particularly striking is the finding that very liberal respondents believe that 60.4% of people killed by police were black. The actual percentage is 24%. This may be explained by benign reasons, such as a greater concern about racism or differential media consumption. But clearly, people believe that the problem of police violence against blacks is worse than it actually is.
McWhorter then tackles the following oft-quoted thesis: black people make up just 12% of the population but account for a quarter of police killings. Therefore, there is systemic racism in policing. McWhorter says, “these figures are not necessarily evidence of police racism.” His answer is worth quoting in full:
The socioeconomic gap between blacks and whites is doubtless an important contributing factor. Police are called to poor neighborhoods more often, so poverty makes someone more likely to encounter law enforcement. From the 1970s through the 1990s, many conservatives argued that too many black people were on welfare. Liberals and progressives replied that, firstly, more white people were on welfare and that, secondly and more importantly, a greater proportion of the black population is on welfare because a greater proportion of black people are mired in poverty. In this context, former Washington Post journalist Wesley Lowery observed that black people are about two-and-a-half times more likely to be killed by cops than their representation in the population would predict. Today, the percentage of black people living in poverty is about two-and-a-half times that of whites (22 percent and nine percent, respectively, in 2018).
He concludes: ” Entrenched socioeconomic disparities should concern us all, and are as intolerable as cop murders. But the idea that the police murder out of racist animus is much less clear than we are often led to suppose.”
Twitter is an awful place to look for facts about current events. Here are a couple of examples regarding police use of force.
Everyone can agree that officers should not accidentally fire their pistols when they intend to use their tasers. But there is wide disagreement over how much blame is shared by the civilian for the use of force. The killing of Daunte Wright shows that some downplay or even omit the civilians actions altogether. Resisting arrest is illegal precisely because it can lead to violence by officers and suspects, as well as fatal accidents. One overlooked lesson from Daunte Wright’s tragic death is that Wright himself had the power to save his own life by simply following the rules.
Police pulled over Daunte Wright for expired registration tags. As he was being pulled over, he called his mother and told her that he was being pulled over for hanging air fresheners from his rear-view window. Officers checked to see if Wright had any outstanding warrants. He had a pending case for robbing a woman at gunpoint, strangling her, and reaching into her bra for $820.
They asked him to step out of the car. He complied. The officer closest to Wright told him that he was under arrest. He explained that he was being arrested because he had an outstanding warrant. A second officer, Kim Potter, also told Wright that he had a warrant. The arresting officer pulled out his handcuffs and attempted to cuff up Wrights left wrist. The officer noticed that Wright began to resist, and said “don’t, don’t” as he put his handcuffs back on his belt. One of the officers said, “Daunte don’t run!” The officer continued, “don’t do it, don’t do it.” Wright pulled his right wrist away from the officer and jumped back in the car.
The officer tried to grab Wright back out of the car. Officer Potter moved around behind the arrest officer and shouted, “I’ll tase you!” But her body camera shows that she was holding her pistol, not a taser. Wright continued to try to fight off the arresting officer, who is trying to remove him from the car. Potter again yelled, “I’ll tase you!” Wright continued to fight to stay in the car. Potter yells, “Taser! Taser! Taser!” The arresting officer jumped away from Wright. Potter had a clear line of sight to Wright. She shot her pistol.
Potter hears the sound of a single shot and appears to realize what she has done. She says, “Shit!” She reaches out to Wright. He drives his car away at high speed. Potter says, “I just shot him!” The car traveled several blocks and crashed into another car. He was pronounced dead at the scene.
Daunte Wright Put Himself in a Bad Position
Daunte Wright tried to avoid being handcuffed. You can’t do that. That is not an option during an encounter with police. There is no easier way to get the police to use force than to fight a handcuffing. If someone believes they are innocent, that still does not entitled them to refuse to be handcuffed or arrested.
Daunte Wright ignored the arresting officer’s warnings not to flee. He was told twice, “don’t do it.” He still pulled away and jumped in his car. When the officers did not let him flee and tried to remove him from the car, he tried to fight them off. That is illegal. He ignored Officer Potters first warning that she was going to use her taser. He ignored her second warning. When she yelled “Taser! Taser! Taser!” he still did not stop. Those actions are not just bad decisions, they are separate crimes: resisting arrest.
Certainly, Officer Potter made a fatal mistake. So did Daunte Wright. He should not have resisted handcuffing. He should not have jumped back in his car to flee. He should have complied with officers orders to stop fighting. He should have given up when he was warned that he would be tased. If he had done any of these things, he would be alive today. He had the power to save his own life. He put himself in a situation where an officer’s mistake could kill him. And that’s exactly what happened.
Fight Your Arrest in Court, Not on the Street
The police are allowed to arrest you if they think you committed a crime. They are allowed to arrest you if they find a warrant issued by a judge. In these situations, you have no choice in the matter. You can’t run off if you don’t like it. You can’t drive your car home or call your mother first.
Sometimes, the police arrest people that later turn out to be innocent. The courtroom is where this proof happens. You can’t just tell the police “I didn’t do anything” and then leave. That’s not how it works. You can’t say, “it wasn’t me.” Police are not required to explain why they are arresting you and then listen to you argue with them about it. You have a right to do that in the courtroom, not on the street.
There’s a third situation. Sometimes police arrest someone without probable cause, for no good reason. You can make a complaint in that situation. You can sue the officer and the police department for money. And you can get your criminal charges dismissed. All of these things, however, happen after the arrest. You cannot hop in your car and drive away. You can’t take a swing at the officer. If you see this happening to someone, you can’t grab them out of police custody. You have to go to court.
Media Should Not Make It Seem Like There Was Nothing Daunte Wright Could Do
The New York Times wrote, “a veteran white officer pulled and fired her firearm instead of her Taser as officers tried to handcuff him.” The Wall Street Journal wrote, “the officer shot Mr. Wright after he re-entered his car.” On the WSJ podcast, a reporter said, “there is a brief scuffle, where he tries to get back in the car; they’re trying to pull him out.” The Guardian wrote, “Police said they pulled Wright over for a traffic violation. He was found to have an existing warrant, and police tried to arrest him. Wright went back into his vehicle, police shot at the vehicle; Wright was struck and he crashed several blocks later.”
The NYT omits the officer’s warnings to Wright not to flee, Wright’s attempt to pull away from the officers, Wright’s attempt to enter his car and flee, and Wright’s physical resistance when officers tried to remove him from the car. Instead, they report that officers simply killed Wright as they attempted to handcuff him. This is not accurate and gives the impression that Wright had no role in what happened In fact, Wright put himself in that position and repeatedly refused to do things that would have de-escalated it.
The WSJ is worse. Their readers learn that the killing happened while Wright “re-entered his car.” For all they know, he could have simply been getting his wallet, or about to leave the scene. This is extremely misleading. A WSJ reporter discussing the incident on a podcast was even worse. She describes Wright’s physical resistance as a scuffle. Two brothers get into a scuffle. A scuffle implies both sides are fighting and both sides are to blame. It’s not a scuffle when a criminal defendant, on the run from a warrant, is physical resisting police officers, who are acting lawfully. It’s not a scuffle when one person is breaking the law and another is simply doing their job.
Finally, the Guardian simply describes Wright as going back to his vehicle when police shot at him. Without context, the Guardian, like the NYT and the WSJ, make it appear that Wright was doing nothing wrong when he was shot. In fact, the Guardian simply omitted all the things Wright did wrong, allowing their reader to be mislead.
This is a problem because of what happens afterwards. Readers of these papers, not to mention those in the community who are hearing about this second-hand, falsely believe that police shot a man who wasn’t doing anything. They falsely believe that there was nothing this man could have done to prevent the police from shooting him. They may understandably infer that they too can be shot by police for doing nothing. They get frightened and angry because of this misleading coverage. They grow suspicious of the police because of this misleading coverage. And race-relations deteriorate because of this misleading coverage.
Police shootings don’t just happen randomly, like getting caught in the rain or catching a cold. People need to understand that the police don’t randomly use force during traffic stops. Whether force is used depends almost entirely on what the civilian does. When media make this shooting seem more outrageous than it was, they are actively harming our communities, and they share responsibility for violence that inevitably follows.
Daunte Wright Had Plenty of Experience With the Criminal Justice System
At the time of the stop, Wright was facing charges for first-degree aggravated robbery with a gun. Wright and another man, Emajay Driver, went to a party in Minnesota in December 2019. They spent the night with two women, and in the morning, one woman paid the other $820 for rent and left. The woman tried to leave with the money, but Daunte Wright prevented her. Wright then allegedly pulled a black handgun “with silver trim out from either his right waistband or his right coat pocket,” pointed it at the woman and demanded the $820. He said, “Give me the fucking money, I know you have it.” He said, “I’m not playing around.” He grabbed the victim around the neck with one hand and reached into her bra with the other hand to grab the money. The victim started to scream. Wright said that he would shoot her and again demanded the money. He began to strangle her a second time and tried to reach into her bra again. Emajay Driver told Wright that they had to leave because the cops were coming. They left without finding the money. The victims reported the crime. Judge Janet Poston found probable cause to believe the charges were true and issued a warrant for Wright’s arrest. Wright was released on bail. You can read the court documents yourself:
While on bail, he was told to check in with a probation officer and not to carry a gun. Wright was caught with a gun by Minneapolis police in June, but he fled the police. This led to a new round of charges and a warrant for his arrest. His bail on the robbery and strangulation case was revoked based on the new gun and flight case. Wright was also not keeping in touch with his probation officer.
Daunte Wright Had the Power to Save His Own Life
It’s clear that Wright’s actions during the fatal traffic stop put himself in a situation was force was necessary. Then, Officer Potter made a terrible mistake and killed him accidentally. Had Wright followed the rules, he would be alive today. But you can go back even further. If Wright had not robbed a woman at gunpoint, strangled her, and groped around her bra for $820, he would not have started down this road at all. He could have followed his bail conditions and refused to carry a gun. If he had done that, there would be no warrant. But he didn’t. He could have complied with the police after being caught with a gun, but he fled. He could have avoided new gun charges and a new warrant, but he didn’t. He could have shown up to court, but he went on the run. Doing the right thing in any one of these situations would have saved his life. He had multiple offramps but his bad decisions kept leading to the traffic stop that cost him his life.
There are two lessons from Daunte Wright’s death. First, officers need to be careful to distinguish their taser from their pistol. Second, don’t put yourself in a situation where an officer has to use force on you, because you never know what will happen.
On Vox, Alexis Harris wrote, “they found a warrant for his arrest: a non-court appearance that most likely was connected to an unpaid $346 in court fines and fees related to a cannabis and disorderly conduct conviction.” She cites to a Twitter account from Billy Corben, a self-described “Florida Man” and director. Seriously, that’s her source for claiming there was no reason to pull over Daunte Wright. Literally the same Twitter account has pictures showing a warrant for carrying a pistol and fleeing the police. The posts are dated three days before Harris’s article. So, even assuming that it’s OK to get your facts from Florida men on Twitter (which it isn’t) this journalist ignored the more serious crimes and misrepresented the facts. Read the shoddy reporting in Vox and tweets yourself:
Officer Potter was arrested and released on bail. Here is her mugshot:
Incredibly, an actress on The View suggested that the officer that shot Daunte Wright intentionally killed him.
Here’s LA County Supervisor Holly Mitchell saying that police and prosecutor’s unions are “clearly such white supremacist organizations.”
She made the comments at a forum titled, “Stop LA Sheriff Attacks: Family Forum” hosted by Black Lives Matter Los Angeles. She then claimed that law enforcement was retaliating against the public for legislative defeats in Sacramento. “They know that they’ve lost more than they’ve won [in terms of getting legislation passed],” she said. “And I think that’s what then amplified their behavior, their behavior against you at the community level.”
Who is Holly Mitchell?
Holly J. Mitchell is a politician currently serving as a member of the Los Angeles County Board of Supervisors. She holds the seat previously held by Mark Ridley-Thomas. Before that, she served in the state assembly and senate since 2010. Her most notable accomplishment is prohibiting discrimination against black hairstyles in the workplace. The LA Times calls her the “queenmaker” of black politics in California.
When Mitchell ran for the seat, she criticized her opponent’s support of law enforcement. “His historic support of law enforcement, his endorsement by police unions, his crafting of Measure C several years ago, which rolled back police accountability gains that we had earned since the Rodney King experience, kind of flies in the face of what people are asking for now.”
Mitchell is also notorious for an incident in the State Senate. Another senator, Susan Rubio from Baldwin Park, adjourned the Senate in honor of Sgt. Ernie Barbossa, a 30-year LASD veteran who had recently passed away. When Mitchell heard that her colleague was honoring Sgt. Barbossa, she scowled, shook her head, and got up. She left before the senate was adjourned, while her colleague was still talking about Sgt. Barbossa’s work with at-risk youth. Although Senator Rubio only spoke for 80 seconds, Senator Mitchell left after 36 seconds before she was done. You can watch the whole thing below:
Why This is Bad
First, and most obviously, these comments are false. Police agencies in Los Angeles, including the largest, LASD, are majority-minority organizations. In other words, they are mostly people of color, with a white minority. Holly Mitchell is claiming that all of these people of color are acting against their own self-interest. She’s claiming that all these people of color are being racist against their own communities and races. It’s preposterous. People of color are not just overrepresented in these groups, they are often the majority.
Did Mitchell intend to call the 52.5% of the force that is Hispanic a bunch of racists?
And it’s not just the street cops. Inglewood, a city in Mitchell’s jurisdiction, has a black police chief, a black mayor, a black supervisor, and a majority black population. Until a few months ago, the DA was also black. Literally every leader in that town’s criminal justice organizations was black. Does Mitchell believe that all of these people are running a white supremacist system?
Calling someone a racist is a very serious allegation. Being a racist is among the worst, most hated, and most shameful things a person can be. We should not throw this allegation around. Especially because those unfairly accused of racism, in this case, cops and prosecutors, often respond with outrage and hostility.
Comments like this widen the racial divide instead of closing it. Harmful, baseless name-calling belongs in the schoolyard, not on the board of supervisors.
What Law Enforcement is Saying
Police officers are not happy to be called white supremacists. Retired LASD Chief Jim Hellmold said, “these commends are so dismissive & disrespectful to the service & sacrifice of so many honorable men and women! My late father served with his partners since the early 1960s, I served for 33 years, my sons are serving. We’re not white supremacists!” Retired LASD Commander Michael Parker said, “She is wrong. I would never be in a white supremacist organization and detest racist ideology. Also, LASD & LAPD have been majority – minority police agencies for 10+ yrs. Each have about 37% white officers, abt 46% Hispanic officers, and abt 13% Black officers.” LASD Chief Patrick Jordan said, “Can one of her staffers give her a demographics report regarding the LASD & LAPD!”
George Gascon was recently elected to be Los Angeles County District Attorney. In part, he won by accusing police of racism and vowing to end it. But a long-overlooked declaration calls into question his sincerity.
Back in 2016, Gascon set out to investigate allegations of racism among police officers in San Francisco. He set up a “Blue Ribbon Panel on Transparency, Accountability, and Fairness.” He had apparently forgotten about his own behavior at a dinner in Massachusetts, but others had not. A retired San Francisco police officer named Gary Delagnes was there. He submitted a declaration, under oath, in which he recounted the evening. The relevant portion is worth quoting in full:
One evening in April 2010, Chief Gascon [and others] had dinner in Cambridge, Massachusetts, where we were attending a Police Union Leadership Forum organized by Harvard Law School. I had the forum organizer invite Chief Gascon to speak to the attendees. During that dinner, Chief Gascon, who was drinking heavily, began reminiscing on his time with the Los Angeles Police Department, including his involvement in the Ramparts Unit scandal. He made multiple statements that disparaged minorities. He became so loud and animated that an African-American patron approached Chief Gascon and asked him to restrain himself because his behavior was offending his family.
Although Delagnes gave this declaration under oath, Gascon has never denied it under oath. His spokesman said, “What [Delagnes] lacks in credibility, he makes up for in imagination.” The San Francisco Chronicle followed up with Delagnes. He said that “If called as a witness by Gascon’s blue-ribbon panel, I will testify in more detail about those statements.” Unsurprisingly, Gascon’s panel does not appear to have called Delagnes as a witness. Martin O’Halloran, another former police officer, was also present and did not deny the allegations.
Although Gascon’s remarks have been overlooked during the tumultuous period that followed his election in Los Angeles, they raise many troubling questions, not the least about his hypocrisy. Can someone really lead a racial justice movement who is so open about his racial prejudices that he must be asked by a person of color to quiet down? If the allegations are false, why hasn’t Gascon, under oath, told the public what really happened? Is he claiming that the retired officer committed perjury, risking prosecution by Gascon’s office, just to get at him? These formal allegations seem to be serious enough on their own to require more from Gascon than a throw-away line by his spokesman.
Controversial LA County District Attorney George Gascon told voters that he would be transparent. But his record shows a troubling pattern of cover-ups, both large and small. Now, he refusing to tell voters who he has hired or for what job. Critics see his refusal to answer this simple question as evidence that he will not deliver on his promises. Others speculate that he is hiding the recent hiring of several public defenders as prosecutors.
Gascon’s Promises to Be Transparent
Gascon’s campaign website promises “prosecutorial transparency.” His Ballotpedia article claims that he will “enhance transparency and eliminate conflict of interest.” The article uses the word “transparency” no fewer than five times. The Appeal wrote an article called “A New Wave of Prosecutorial Transparency,” complete with a photo of Gascon. NBC News congratulated him for bringing “more transparency to investigations.” The Future Left wrote “Gascon is the reform candidate, who is running on a platform of ending mass incarceration, police accountability, prison alternatives, and transparency.” Gascon even created a Blue Ribbon Panel on Transparency, after a scandal in San Francisco.
Voters thought they could believe him. The ACLU, after his victory, wrote “now that the election is complete, the coalition is focused on promoting greater transparency and accountability.” Here are some examples of voters who though Gascon would be transparent:
Gascon Has Never Been Transparent
Gascon was notorious during the 2020 campaign for refusing to tell the public what is in his LAPD disciplinary records. Prosecutor Michele Hanisee described it this way: “Gascon, who has publicly advocated for transparency in the criminal justice system, apparently draws the line at authorizing the release of his own disciplinary records.”
But his lack of transparency doesn’t just extend to his past misconduct, it also includes misconduct committed by the SFDA. Gascon covered up exculpatory evidence that his crime lab was using questionable methods. He continued to do so until an appeals court ordered him to provide the evidence.
Hanisee also shines a light on Gascon’s attempt to cover up his own crimes.
As District Attorney, Gascón’s attempt to silence whistleblowers in the SFDA’s office did not stop with burying the exculpatory memo that both the author of the memo, and defense attorneys believed should be publicly disclosed. He also attempted to silence investigators at the SFDA’s office who informed federal authorities of Gascón’s apparent violations of federal law. Gascón’s retaliatory actions against that whistleblower cost the City of San Francisco $400,000.
Now Gascon Is Refusing to Say Who He Has Hired
On February 24th, 2021, the union that represents Gascon’s deputies asked for a list of new hires. They asked again on March 3rd and March 4th. They put their request in writing. They waited until March 12, when the union received a letter from Gascon’s lawyers indicating that they would get an answer by March 26th. That day came and went with no answer.
On March 27th, Gascon’s lawyers said that they were “continuing to conduct a thorough search for responsive documents.” They set a new deadline of April 9th, 2021. It is unclear why it has taken over a month to walk over to the personnel office and simply ask for the names.
The union is equally perplexed. They asked the following questions:
What does the Administration have to hide?
What is the Administration afraid that we will learn?
Would the request be treated differently if it came from a media outlet, or a member of the public?
Does the Administration’s resistance to providing this simple information relate to the ongoing absence of an organizational chart from the Office’s website?
To date, they have received no answer, nor has the public, who are nevertheless paying these new secret employees.
Gascon Has Been Hiring Public Defenders
Some of the new hires have been identified in the press. The Metropolitan News-Enterprise reported that Gascon recently hired Alisa Blair, Tiffiny Blacknell, and Shelan Joseph out of the Public Defender’s Office. Each of these lawyers had previously supported Gascon politically. The public defenders were hired without the required competitive examinations and over the heads of other prosecutors.
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.
On February 8, 2021, Judge James Chalfant granted a preliminary injunction against LADA George Gascon. The order prevented him from banning strike enhancements. The judge ruled that prosecutors had to “plead and prove” them. He also ruled that prosecutors could not move to dismiss them unless it was in the interests of justice. The ruling was a victory for beleaguered line prosecutors who were being forced to choose between obeying the law or obeying their boss.
Most observers expected Gascon to adjust his policies in good faith to comply with the ruling. This is what typically happens after a government agency is hit with an injunction. But Gascon did not attempt to comply in good faith. Just two days after the judge issued his ruling, Gascon issued a new “special directive.”
The Special Directive was not good faith compliance, but rather an attempted end run around the injunction.
Specifically, Judge Chalfant enjoined prosecutors from moving “to dismiss strike priors or any existing sentencing enhancement in a pending case without having legal grounds as required by section 1385.” There is a large body of law discussing these legal grounds.
But the new special directive orders prosecutors to do exactly that.
Motions to dismiss alleged strike priors pursuant to Penal Code section 1385 will be based on individual case review pursuant to the considerations set forth by The Committee on Revision of the Penal Code, hereafter “The Committee.” The presumption will be in favor of dismissal or withdrawal when any one of the factors apply.
This new order is directly contrary to the injunction, contrary to the law, including section 1385, and the case law discussing it. Gascon’s problem is that the law makes it very difficult to dismiss under this section, and he would like it to be very easy. If deputies use their law degrees and follow the law, they would not make this motion except in truly extraordinary and rare situations. But Gascon still wants this motion on every case. So he tried to change the requirements to make it easier.
Instead of following the law, deputies must not review factors set forth by a non-elected committee. None of these factors are law. They have not been deliberated on by the legislature. In fact, the report was issued after the injunction, on February 9th, the day before the new special directive. Prosecutors must bring the motion if any one of the factors apply. Again, this is not the law. The law says the opposite, that motions should only be used in “extraordinary” circumstances.
Ordering all prosecutors to seek a dismissal of prior strikes based on section 1385 and on individual case review is appropriate and is the law. But, adding the requirement “pursuant to the considerations set forth by The Committee” requirement to those dismissal motions, violates the clear and unambiguous holdings of Romero and its progeny, section 1385, and Judge Chalfant’s order. Even more illegal is the presumption of dismissal if any one of the factors apply. This is the opposite of “extraordinary” circumstances when the “ends of justice demand it” requirement under the law.
Gascon’s end run around the injunction is unlawful and unethical. It is a disappointing example of his desire to change our system by any means, including illegal means or disobedience to court orders.
LA prosecutors took George Gascon to court and won. Judge James Chalfant ruled against newly-elected LADA George Gascon, issuing a preliminary injunction blocking some of Gascon’s “special directives.”
Chalfant ruled that the Penal Code requires prosecutors to plead an prove “strike” priors. Gascon’s orders not to plead and prove these priors is illegal. He also ruled that prosecutors cannot move to dismiss these priors without legal cause. Gascon’s order to do so, he held, was not legal cause. He held:
The District Attorney’s disregard of the Three Strikes ‘plead and prove’ requirement is unlawful, as is requiring deputy district attorneys to seek dismissal of pending sentencing enhancements without a lawful basis. An injunction against a public official’s unlawful actions cannot, by definition, interfere with the lawful exercise of the official’s duties.
Chalfant Condemned Gascon in the Strongest Terms and Vindicated His Critics
Chalfant used extraordinary language condemning Gascon.
On December 7, 2020, when Gascón assumed the Office, he attempted to uproot the long-standing system of sentencing enhancements, including the Three Strikes law for prior convictions. Legislating by fiat, Respondent Gascón issued a series of special directives that all but repealed California’s sentencing enhancement laws and commanded his employees—Los Angeles County…prosecutors sworn to uphold and enforce the law—to violate numerous statutory mandates and refrain from performing their duties under the law.
Chalfant’s ruling vindicated prosecutors who had spoken out against Gascon. Chalfant said that Gascon had ordered his prosecutors to violate the law, their oaths of office, and their ethical responsibilities.
Portions of the Special Directives prohibit deputy district attorneys from complying with their ministerial prosecutorial duties in violation of the law, their oaths of office, and their ethical responsibilities as officers of the court [….] The unlawful conduct includes barring deputy district attorneys from charging enhancements they statutorily are obligated to charge, barring deputy district attorneys from complying with their ministerial duty to exercise case-by-case discretion to maintain or move to dismiss charges, mandating that deputy district attorneys move to dismiss special circumstance allegations that cannot be dismissed by law, and mandating that deputy district attorneys attempt to unilaterally abandon a prosecution where a judge denied a motion to dismiss [….] Deputy district attorneys risk contempt of court or discipline by the State Bar each time they undertake this conduct.
Gascon Won An Early Victory on Other Sentence Enhancements
Although prosecutors may now file strikes, other sentencing enhancements remain banned in Los Angeles. Judge Chalfant declined to issue a preliminary injunction preventing Gascon from using a blanket policy to disallow the use of these enhancements. The Metropolitan News-Enterprise has this quote from a prosecutor:
As for new filings, it looks like as of now, Gascon can file cases without the special circ allegations, and without the [great bodily injury], gun, gang and other enhancements. This will decrease the number and types of convictions that will qualify as future strike priors.
For example, if a husband batters his wife, he would be guilty of a felony. If he broke her bones, prosecutors used to be able to add three years to the sentence for the infliction of great bodily injury. This is no longer on the table.
Chalfant Trashed Gascon’s Infamous “Script”
After judges began denying Gascon’s motions to dismiss strike priors, Gascon issued an order requiring his prosecutors to claim the Three Strikes Law was unconstitutional. Specifically, prosecutors would have to read from a script which included this claim. The script omitted law that held the opposite of Gascon’s claim: that Three Strikes was constitutional. Prosecutors cannot mislead the court by omitting law. Chalfant agreed that prosecutors could not be put in this ethical bind.
Local Media Coverage Was Heavily Biased Towards Gascon
The Los Angeles Times covered this story under the headline, “Several of D.A. George Gascon’s reforms blocked by L.A. County judge.” The article does not explain how ordering your deputies to break the law and act unethical is a “reform.” They described the ADDA’s position as an “allegation” even though it has now been validated by Judge Chalfant. They reprinted large parts of Gascon’s arguments to the judge, even though they had been rejected by the judge.
Instead of focusing on the illegality of the orders and their unethical requirements, the LA Times described the dispute as “a broader divide between traditionalist and reform-minded prosecutors.” They describe the union as the “old guard of district attorneys.” Their article concludes with a pro-Gascon quote from one of his allies.
LA’s local NPR station followed the LA Times in describing Gascon’s illegal orders as “reforms.” Their article is marginally better than the LA Times article, but still contains inaccurate language and allows Gascon the last word.
Reactions From the Union and Its Allies
The victorious ADDA said:
The court ruled as we expected in holding that the District Attorney cannot order his prosecutors to ignore laws that protect the public from repeat offenders. As detailed in our reply brief, the court ruled that the District Attorney’s policy violated the law to benefit criminal defendants and ordered him to comply with the law. This ruling protects the communities which are disproportionately affected by higher crime rates and those who are victimized. […] This decision was based on what the law is and not what an officeholder thinks it should be.
Today’s decision is more than a humiliating rebuke of Gascón. It is a reminder that no one is above the law and the law in Los Angeles is not determined by one man, no matter how much of an opportunist, but by the people of the state of California. It is a victory for the community, victims, survivors, and their families and a reminder to all DDA’s that we are required to follow the law, not the demands of the DA or any elected or unelected official. We swore an oath, we must hold to it. Always do the right thing. Always fight for justice for the most vulnerable in our society. Today is a good day, L.A., justice was done.
Judge Chalfant’s decision is to be lauded for its great attention to the fine points of the law and his sensitivity to the serious ethical problems created for Deputy DAs by Gascón’s directives. That being said, there is only one ultimate solution to the public safety threat posed by Gascón and that is Gascón’s recall. The website for the recall effort is recallgeorgegascon.com.
Fresno DA Lisa Smittcamp said:
Today Judge Chalfant stood up to George Gascon and his illegal directives that seek to threaten the safety of the people of Los Angeles County, and all residents of California. Gascon is not a criminal justice reformer. He is an anarchist. He is a rogue that is disguising himself as a District Attorney. He isn’t in office to promote public safety, to assist victims of crime, and to help keep children out of gangs. He is there to push an agenda that protects violent gang members, career criminals, and those who have a reckless disregard for human life. Today, I salute Los Angeles County Superior Court Judge Chalfant for ordering George Gascon to abide by the law.
Kern County District Attorney Cynthia Zimmer said:
The court’s ruling reinforces what had already become all too clear: that George Gascón has been commanding his deputy district attorneys to violate the law and their ethical duties since he took office, all for the benefit of ensuring that criminals receive the most lenient sentences possible. In all the argument put forward by Gascón, the judge found that ‘there is not a single reference to a concern for victims in the sentencing process,’ and that most of Gascón’s directives fail to consider or even mention victims or their rights. This injunction is a win for everyone who values the rule of law, public safety, and the rights of crime victims.
Reactions from Gascon and His Allies
Gascon said he would appeal the ruling. In the meantime, he said he would follow the ruling, which he claimed did not affect most of his directives.
I never had any illusions as to the difficulty and challenges associated with reforming a dated institution steeped in systemic racism. My directives are a product of the will of the people, including survivors of crime, and a substantial body of research that shows this modern approach will advance community safety.
Gascon was forced to revise his special directives.
Laurie Levenson, a professor at Loyola Law School, said that the ruling is a setback for Gascon.
Everything about this is unusual, but it’s not a surprise that it’s happening, given that Gascon is coming in as a progressive or reformer among DAs, many of whom don’t want to reform.
Gascon ally and San Francisco District Attorney Chesa Boudin had similar polices. He was forced to defend them. His spokeswoman said that his Three Strikes policy was “not absolute” and that charging decisions will be made “on a case-by-case basis.”
The Second District of the California Court of Appeal handed down its decision in People v. Laanui on January 8, 2021, about a week after the ADDA, a union representing Los Angeles prosecutors, sued DA George Gascon. On its face, the case does not appear to be relevant to the lawsuit, but on closer look, the court is clearly signaling approval for the union’s position.
A Parking Lot Murder Led to a Series of Other Crimes
Defendant Elliot Laanui shot victim Edward Emery in a supermarket in Redondo Beach in 1995. There were multiple witnesses and DNA evidence. The DNA was not tested until 2011. It led police to the defendant, who was arrested. Laanui implicated himself during a Perkins operation and communicated with undercover deputies. Somehow, the defendant was released and committed several other crimes, including a shooting and soliciting the murder of an accomplice.
Strikes Were Charged as to Some Counts But Not Others
The information charged a complicated series of crimes and enhancements. There were six total counts. On counts 1, 2, and 3, the information alleged that defendant had suffered serious or violent felony convictions within the meaning of the “Three Strikes” law. These enhancements were not charged as to count 6, solicitation of murder of an accomplice.
Defendant was convicted on all counts. The court used the Three Strikes law to double the sentence on count 6, even though it had not been pled as to count 6. This decision was appealed to the Second District of the California Court of Appeal. This is the same court that would hear an appeal in the ADDA lawsuit.
The Court of Appeal Only Published Its Discussion of Strikes
The first clue of the Court of Appeal’s intentions came from what it chose to write about. The defendant in Laanui raised nine contentions on appeal. The court only published its discussion of the issues related to the filing of strikes.
The Court of Appeal affirmed the trial court and held that it properly doubled the sentence on count 6 under the Three Strikes law. After discussing the parties’ contentions, the Second District got right to the point, the same point at the heart of the ADDA lawsuit:
The purpose of the Three Strikes law is “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious or violent felony offenses.” (§ 667, subd. (b).) By its own terms, it applies “in every case in which a defendant has one or more prior serious or violent felony convictions . . . .” (Id., subd. (f)(1), italics added; see also § 1170.12, subd. (d)(1).)
(People v. Laanui (2021) — Cal.Rptr.3d —, at p. *12.)
By now your ears should have perked up if you are remembering the ADDA lawsuit. After all, the heart of that suit is the contention that prosecutors must file strikes in every case, despite their boss’s order to never file strikes. Here, the Court of Appeal is making a blanket statement that Three Strikes applies in “every case” in which the defendant has a strike prior. By contrast, George Gascon doesn’t want it to apply in any case in Los Angeles.
What the court wrote next seems to apply directly to the ADDA lawsuit.
Indeed, despite the “general rule” that “the selection of criminal charges is a matter subject to prosecutorial discretion,” “the Three Strikes law limits that discretion and requires the prosecutor to plead and prove each prior serious felony conviction.” (People v. Roman (2001) 92 Cal.App.4th 141, 145 (Roman); see § 667, subd. (f)(1) [“The prosecuting attorney shall plead and prove each prior serious or violent felony conviction . . . .”], italics added; see also § 1170.12, subd. (d)(1).) The prosecution may move the court to dismiss the prior conviction allegation for insufficient evidence or “in the furtherance of justice” (§§ 667, subd. (f)(2), 1170.12, subd. (d)(2)), but may not “unilaterally strike” the allegation. (Roman, at p. 145.)
(Laanui, supra, at p. *12.)
This statement could form the holding of a ruling in the ADDA case, it is so directly on point. This statement is also the first principle of law that appears in the published opinion. It was given pride of place despite the fact that the actual issue in contention was directly controlled by different precedent. (See People v. Garcia (1999) 20 Cal.4th 490.) Garcia holds that “it is appropriate to allege [defendant’s prior conviction] status only once as to all current counts.” (Id. at p. 502.)
Why would the Court of Appeal discuss the general applicability of Three Strikes first? Especially when they could have skipped right to Garcia, which controls? And this happened not once, but twice. There is a second controlling case, People v. Morales (2003) 106 Cal.App.4th 445. This case is also factually analogous but was discussed second.
The opinion is littered with points of law that will apply in the ADDA case. The court quotes Penal Code section 667(f), which provides that Three Strikes “shall be applied in every case in which a defendant has a prior felony conviction. (Morales, supra, 106 Cal.App.4th at p. 455.) In fact, the Court of Appeal quotes this language in no fewer than three different sections of the opinion.
But that isn’t all. The court says that “it would be evident […] on the face of the Three Strikes law that the prior strike would apply to all eligible counts, unless the trial court dismissed the strike either on its own motion or in response to a motion by the prosecution or defense.” (Laanui, supra, at p. *15.) Moreover, “the prosecution expressly cannot make a discretionary choice not to pursue the Three Strikes alternative sentencing regime on all eligible counts.” (Id. [internal quotations and punctuation omitted].) But this is exactly what George Gascon wants to do. And it forms the basis for the dispute in the ADDA’s lawsuit.
The Court of Appeal concluded its opinion by describing Three Strikes as “nondiscretionary.” (Id. at p. *17.)
Why Is Really Happening Here?
The Metropolitan News-Enterprise summarized the opinion this way: “the majority opinion […] recite[s] a proposition that Los Angeles County’s new district attorney, George Gascon, is contesting: that a prosecutorial agency is legally obliged to allege all strikes.” The Met News continues:
The two opinions in Laanui, each reciting that the charging of all priors is mandated by statute, come at a time when Gascón is ordering deputies not to allege any strikes. Although the requirements of the Three Strikes Law have been upheld in the past, the opinions add reinforcement to the position of the Association of Deputy District Attorneys (“ADDA”), which has brought a Los Angeles Superior Court action against Gascón to block some of the “special directives” issued by him on Dec. 7, his first day in office, including his prohibition on alleging strikes.
The Laanui opinion was issued just after the ADDA lawsuit was filed. The ADDA lawsuit was discussed extensively in the legal press. And the Laanui opinion itself contains paragraphs of precedent that seem to control the issues in the ADDA lawsuit. This precedent is given pride of place in the opinion, even before cases that control the outcome.
I believe that the Court of Appeal is trying to signal the correct ruling to the ADDA’s judge. The only other option appears to be that Laanui is an incredible coincidence. But it is hard for me to believe that such a relevant and forceful opinion could have been issued by accident.