When An Unqualified 29-year-old Became Public Safety Commissioner

Nika Soon-Shiong’s father bought the LA Times. Then she got appointed as a public safety commissioner in West Hollywood, despite having no background at all in criminal justice. While there, she reduced the number of deputies on the street before quitting early to return to graduate school.

Who is Nika Soon-Shiong?

Nika Soon-Shiong grew up wealthy. She is the daughter of Patrick Soon-Shiong the publisher of the Los Angeles Times. Her father became rich after inventing a drug called Abraxane.

Soon-Shiong is extremely well educated. She graduated from Stanford in 2011 with a bachelor of arts in international relations. Soon-Shiong’s resume is silent as to what she did between 2011 and 2014. She began 2014 as an intern at the Estafani Center in Cape Town. She also spent the summer of 2014 in Cape Town, doing a research project for Stanford around individuals affected by HIV, presumably as part of a master program. She spent the summer of 2015 at the New York State Summer Writers Institute, a fiction workshop. She received her masters in African studies, in 2016. As I read her resume, I became increasingly curious about when her interest in criminal justice began.

After getting her masters, she was the “Princeton in Africa Fellow” for a year. This job entailed producing a podcast, photography exhibition, and photo-essay showcasing public school conditions. After a year in this role, she continued doing research on South African public schools until the end of 2017. There is no indication of any work related to criminal justice.

Sooh-Shiong enrolled in a doctoral program at Oxford in 2018. While there she worked as a “consultant” for the president of the World Bank. One of her duties was writing “speeches and media posts” for him. According to her resume, Oxford gave her a doctorate in philosophy in 2019, in international development. Interestingly, she said in a 2022 interview that she had not completed her doctorate. Local media report that she was working on her thesis and returned when the pandemic struck.

When she arrived back in Los Angeles she took an active role in her father’s newsroom. For example, she banned the use of the word “looting” to describe theft by protesters of the murder of George Floyd. She is 29 years old.

Nika Soon-Shiong Has No Qualifications for a Job in Criminal Justice

It might seem provocative so say that a public safety commissioner has literally no background in criminal justice, but if it cannot be said about Nika Soon-Shiong, it cannot be said about anyone. She grew up extremely, superlatively rich, with all the benefits it implies. She has never lived in a crime-ridden neighborhood, and therefore has less lived experience than literally hundreds of thousands of people in the County of Los Angeles.

Her education is completely unrelated to criminal justice, criminology, penology, or any related field. Nor does she have a law degree, much less experience handling a criminal case.

During her education, she found time to host a podcast and attend a fiction workshop, but did not work anywhere near the criminal justice system. She has no background in law enforcement. Although nothing was preventing her from completing the LASD Explorer Program, volunteering as a reserve deputy, or even working as a peace officer, she has not done any of those things. Certainly, she has no experience in any of the many public sector jobs that might prepare a person for the public safety commission.

The one thing that might qualify someone to be in a position of public trust is the ability to run a successful business. That’s a general skill that can be applied to almost any job. Making money is the simplest, most obvious proof that you have general business administration skills. But again, Soon-Shiong did not make her money. It was simply given to her by her father.

The public safety commission job was also just given to her. She was appointed by City Councilmember Lindsay Horvath, despite her having no background, training, or experience in criminal justice.

Nika Soon-Shiong Defunded the Police

In 2022, Soon-Shiong led West Hollywood to decrease the amount of their policing budget. The net result is five fewer deputies on the streets. She did this despite reliable and recent data showing that hiring more police reduces crime. According to this data, reducing a police force by five officers leads to one additional murder every two years. It also reduces other more common crimes like robbery, rape, and aggravated assault. Moreover, additional police result in Black lives saved at about twice the rate of white lives saved.

Meanwhile, West Hollywood’s crime rate shot up 38% in the past year.

Then, in August, she resigned as public safety commissioner, despite the fact that her term was not over until February of 2023.

It’s No Surprise That A Well-Meaning Heiress Misunderstands Criminal Law

Well-meaning people have weakened our criminal justice system in the last decade. Kind people go wrong because they are focusing on the wrong problems or because they have been misled about the solutions. All of us, inherently, want to believe that rehabilitation is all that is needed to prevent crime and change criminals back in to normal neighbors. We want to believe this despite knowing, since 1974, that “Nothing Works” to rehabilitate an unwilling prisoner. And virtually all prison inmates do not want to rehabilitate. The only tools we are left with are deterrence and incapacitation. If rehabilitation is the carrot then these are the sticks. It is difficult for kind, well-meaning people to accept this and act on it.

At the same time, none of us relish the idea of locking up another human being for a long period of time. It’s easy to direct our natural human sympathy at the criminal defendant: after all, he is there in court, there in jail, easy to see. While the victim usually isn’t there, can’t be seen, and sometimes there is no one victim at all. California state prisoners stole $400 million in COVID relief, for example. Since there was no single victim, it’s easy to think that there was no victim at all. Even though those prisoners sold all of the tax paid by 165,906 households, how do you know if it’s your taxes they stole? It’s as if the entire City of Pasadena‘s taxes floated away without so much as a sharpened pencil to show for it. The absent victim, or the institutional victim, present a trap for compassionate people, who direct their sympathy at the only person in front of them: the criminal defendant.

It takes education, training, and experience to understand these things. But that is exactly what Nika Soon-Shiong and others do not have. They see news coverage that leads to them to believe that there is an epidemic of police brutality. They read books telling them that prison is a new racial caste system. They believe that the United States participates in a racialized “mass incarceration” because of our prison populations. None of these things are true. But people are easy to mislead when they have no inkling of the way the system actually works. You would expect a public safety commissioner to be the kind of person to have an inkling. But in the case of Nika Soon-Shiong, and so many others in similar positions, you’d be wrong.

Soon Shiong has been compared to Ivanka Trump: both are rich heiresses in positions of public trust without any qualifications to serve. They have different political views, but they are two sides of the same coin. Many of us felt that Ivanka Trump had no business in the White House. She didn’t know what she was doing and hadn’t earned it. Applying this same rule to Nika Soon-Shiong yields the same result. She doesn’t know what she is doing and doesn’t belong there. West Hollywood, like everyone else, deserves high quality public servants, not dilettantes or the spoiled rich.

At the end of the day, Nika Soon-Shiong is gone, and so are those West Hollywood deputies.

Notes

Predictably, Soon-Shiong’s allies accused her opponents of racism. This led to a lot of distracting outrage all around and didn’t keep anyone safe.

If Nika Soon-Shiong is 29, as reported by LA Magazine, and graduated from Stanford in 2011, as she wrote on her resume, then she would have graduated at age 18. If she studied 4 years, she would have enrolled at 14. That seems possible, but odd.

Featured image credit: LA Magazine.

What We Aren’t Saying About Brittney Griner

You may have heard by now that American basketball player Brittney Griner was convicted of drug crimes in Russia and sentenced to nine years in prison. Her supporters have called this a wrongful detention and may be traded back to the United States in a prisoner swap. But no one is talking about just how egregious it is that a WNBA player’s crime should set a Russian arms dealer free.

The Crime

Brittney Griner, who is 31, has played basketball in Russia since 2014. She is obviously familiar with Russia, having traveled to and from the country many times. Nevertheless, Griner flew into Moscow’s Sheremetyevo Airport with vape cartridges containing cannabis oil in her luggage. These are illegal in Russia. It is also illegal to fly with marijuana in the United States. The cannabis was discovered by a drug sniffing dog. The Russian Federal Customs Service then put the luggage through an X-ray and discovered the cartridges. She was arrested at the airport.

Griner was facing a minimum of five years and a maximum of ten years in prison. Analysts thought it was likely that she would get the maximum. Griner pleaded guilty. She apologized before her sentencing. She was sentenced to 9 years in prison.

Victor Bout – “The Lord of War.” Credit: NPR

Who is the US Trading for Griner?

Even though Griner admitted that she was guilty was given a legal sentence, President Biden said that “Russia is wrongfully detaining Brittney.”

The U.S. has offered to trade convicted Russian arms dealer Viktor Bout in exchange for Griner and another American. Bout, who is called “The Merchant of Death,” was the inspiration for the 2005 film Lord of War starring Nicholas Cage. The former Soviet officer illegally sold 700 surface-to-air missiles, thousands of guns, high-tech helicopters and planes fitted wit grenade launchers. He worked with the Taliban, Muammar Gaddafi, and Liberian dictator Charles Taylor. He was arrested in Thailand after a sting operation in 2011.

We Aren’t Talking About Brittany Griner’s Mistakes

Brittany Griner is not a child. She is a multi-millionaire in her 30s. She had flown back and forth to Russia multiple times every year since 2014. She also flew regularly with her WNBA team. Despite this, she broke US laws by flying with marijuana in her carry-on luggage. As you read this, you might be thinking that this is a minor crime, and it is. But it is a crime. And despite her extensive experience with Russia, she broke Russian law by bringing drugs there too. Given her history, she cannot credibly say that she didn’t know she was committing a crime. Given her age, she can’t write it off to inexperience.

She pleaded guilty and apologized. She was given a legal sentence. We may think the sentence was too harsh, but Russians are in charge of Russian laws, not Americans. Our opinion does not matter.

Since Griner is famous, rich, and connected, she was able to get the Federal government to attempt to get her back. In that way, she is already more privileged than virtually any other American arrested abroad. Moreover, the US is offering up an extremely dangerous man for Griner’s release.

This is what we aren’t talking about. Griner’s mistakes led directly to the release of a cartoonishly dangerous Russian arms dealer. The media seems to be talking around that by focusing on the length of the sentence. Nine years for marijuana possession is shocking for a generation of Americans used to authorities ignoring marijuana possession or winking at it, even in those states where it remains illegal. Griner, and her relatives, should pause for a moment to consider whether it is in the national interest to trade a rich athlete with a history of violence against women for a man so notorious that a movie was made about his criminal exploits.

If Griner had followed the rules, like the rest of us, that arms dealer would be staying right where he belongs, in federal prison. Griner’s crime is robbing the arm’s dealer’s victims of justice in a very literal way. Yes, it’s just marijuana that she tried to sneak in. That’s a minor crime. But her minor crime became much worse because of the consequences. Griner should not be treated as a returning hero, or even a returning hostage. She should be treated as the woman whose admittedly illegal conduct let “The Lord of War” out of prison. And that is not a minor thing at all.

Notes

Griner said that she unintentionally packed the cannabis canisters in her suitcase because she was in a hurry. Although this detail should be included out of fairness to Griner, the reader should know that every drug criminal has an excuse or explanation when they are caught. The fact that she still pled guilty shows that this is not a legal excuse for her crime. Indeed, her own legal team said that her guilty plea was intended to “take full responsibility for her actions.”

How to Screw Up a Successful Recall

The recall campaign appears likely to qualify for the ballot. At the same time, Gascon’s poll numbers are dropping and support for the recall is surging. But the rules of the recall vote mean that Los Angeles may end up right where it started. If too many mainstream candidates run and split the vote, Gascon’s replacement may be just as radical.

The Recall Has Gathered Enough Signatures as Gascon’s Poll Numbers Have Dropped

Leaders of the effort to recall Los Angeles District Attorney George Gascon are saying privately that they have gathered over 700,000 signatures in support of a recall. They need 566,857 in order to put the recall on the ballot. The additional signatures will serve as a cushion when some of the signatures are inevitably invalidated by the Registrar. The campaign has exceeded their stated goal of collecting 650,000 – 700,000 signatures.

Both recall supporters and Gascon supporters are privately saying that they do not expect him to survive the recall. Gascon is the political mentor of San Francisco District Attorney Chesa Boudin, who was recalled earlier this summer. The landslide recall of Boudin happened in San Francisco, which is more liberal than Los Angeles County. The implication for Gascon is that the landslide to oust him will be even larger than Boudin’s.

This is backed up by bad polling for Gascon. A July 28, 2021 poll showed that 34% had an unfavorable impression of Gascon, while only 17% had a favorable impression. 40% disapproved of his performance and only 25% approved. Crucially, 55% of those surveyed would vote to recall Gascon while only 23 % would vote to keep him. Only 13 % were unsure. These conclusions have been reinforced by subsequent polls. In June, a poll of liberal Long Beach found that 45% of voters back the recall and 27% oppose it. Repeated polls, such as a poll commissioned by the Los Angeles Police Protective League, show Gascon’s support deteriorating: a plurality of voters now support recalling him.

Credit: Santa Monica Observer

The Winner of a Plurality of Votes, Not a Majority of Votes, Would Replace Gascon

Article II of the California Constitution allows voters to recall and remove elected officials. The process began when the recall campaign filed a Notice of Intent to Recall, which was approved by the County Registrar. Then they began gathering signatures. If the recall effort has gathered enough signatures then the recall will appear on the ballot. After that, according to the University of California’s Institute for Governmental Studies:

The recall ballot has two components: a yes or no vote for recall, and the names of replacement candidates, selected by the nomination process used in regular elections. The recall measure itself is successful if it passes by a majority. In that case, the replacement candidate with a simple plurality of votes wins the office. If the recall measure fails, the replacement candidate votes are ignored.

This is the crucial point: if the recall is successful, the next LA DA will be the winner of the plurality of votes. There is no run off. If there are 10 candidates, the next DA could win with a tiny plurality, say, 20% of the vote.

Many Mainstream Candidates Have Expressed Interest In Running to Replace Gascon

It seems like everyone wants to replace George Gascon. The most visible candidate is Jon Hatami, a veteran prosecutor who successfully prosecuted the killers of Gabriel Fernandez. Hatami appeared in a Netflix special about the Fernandez, an eight-year-old who was tortured and murdered by his mother and her boyfriend. Hatami has actively campaigned against Gascon for months, and was profiled in LA Magazine as a probable replacement, complete with this illustration:

Credit: LA Magazine

John McKinney, another veteran prosecutor, also appears to be running. McKinney is assigned to the LADA’s prestigious Major Crimes Division. He is active on social media and is pushing an alternative to progressive prosecution that he calls “Proportional Justice.” Like Hatami, he frequently appears on television to promote the recall.

Eric Siddall is Vice-President of the union representing Los Angeles Prosecutors. This group, made up of George Gascon’s employees, voted 98% to 2% in favor of the recall. Siddall has also frequently appeared on local media in support of the recall effort. He advocates for “responsible and sustainable reform.”

Other names being floated to replace Gascon are John Lewin and Steve Cooley. Lewin is a legend in the LADA’s office, famous for his successful cold-case prosecutions. Like McKinney, he works at the Major Crimes Division. He recently convicted Robert Durst, subject of HBO’s The Jinx. He was also profiled in Los Angeles Magazine as “The King of Cold Cases.” Steve Cooley has already served as LA DA and is talking about coming out of retirement. He unsuccessfully ran for California Attorney General as a Republican, but could not even win his own county.

The “Progressive Prosecutor” Movement is Still Alive and Well

Although there are many mainstream candidates interested in replacing Gascon, the movement that got Gascon elected his not gone away, even if they have lost momentum. The media’s reaction to the successful recall of SFDA Chesa Boudin made this glaringly obvious. The voter’s repudiation of Boudin, they said, wasn’t what it looked like. He was unfairly blamed for an environment outside of his control, sandbagged by the SFPD, or a victim of voters manipulated by fear-mongering. Meanwhile, progressive prosecutors like Larry Krasner, the District Attorney of Philadelphia, cruised to reelection without a problem.

This movement will put a candidate on the ballot if Gascon is recalled. There are many liberal candidates who have been described as “woke” or “progressive prosecutors” that want the job. For example, Rachel Rossi ran for LADA in 2020. She did not make the runoff, but still received 23% of the vote. There is nothing preventing her from running again as a replacement for Gascon.

The Scenario

Imagine a hypothetical. The voters, in line with recent poll numbers, vote to recall Gascon. The five candidates listed above appear on the ballot as replacements for Gascon. So does Rachel Rossi, repeating her 2020 effort to become LADA. The voters overwhelmingly prefer the mainstream candidates, and give them a total of 60% of the vote. In other words, each receives about 12%. Meanwhile, voters give the progressive prosecutor movement 40%, far less than the votes received by the mainstream. However, there is only one candidate for these votes to go to. Rachel Rossi receives 40% of the vote, trouncing her nearest mainstream rival. The overwhelming desire of the voters is frustrated. LA does not get rid of the radical ideas that led to the recall effort in the first place. Because of vote-splitting, LA ends up right back where it started.

Vote Splitting is Real

This is not a far-fetched prediction. Vote splitting is an electoral effect in which the distribution of votes among multiple similar candidates reduces the chance of winning for any of the similar candidates, and increases the chance of winning for a dissimilar candidate. Vote splitting occurs most easily in plurality voting, the type of voting applicable to Gascon’s recall.

Vote splitting has happened before. The most famous example is the support Ralph Nader took from Al Gore, allowing George W. Bush to win the presidency. But it has also happened in California, when voters recalled Governor Gray Davis. There were 135 replacement candidates, including actor Arnold Schwarzenegger. Concerns about vote splitting caused the Democratic Party to withdraw all but one of their major candidates. The Republicans withdrew most of their candidates as well. 61% of voters wanted the recall. Schwarzenegger and another Republican received 63% of the vote, but split it between themselves. Schwarzenegger was still able to beat the Democrat, who received 31% of the vote.

What should really drive this point home are the results of the March 2020 election for LADA. In that primary election, mainstream candidate Jackie Lacey received 48% of the vote. Progressive candidates George Gascon and Rachel Rossi split the progressive vote 28% to 23% respectively. Had that been a recall, Lacey would have won outright. Because it wasn’t, Rossi’s voters went to Gascon, and Gascon went on to win. Recent experience suggests, therefore, that vote splitting in the LADA race really matters.

If recall supporters are serious about returning the LADA’s office to moderates, they should get serious about vote splitting. Even two candidates may be too many. Otherwise, they will watch all their efforts go down the drain.

Gascon Wants to Pay for Cop-Killers Funeral

Two El Monte police officers were killed yesterday, in what the mayor described as an “ambush.” One was a 22-year veteran and the other was a rookie.

According to CBS News:

The El Monte officers were identified Wednesday as Cpl. Michael Paredes and Officer Joseph Santana. Paredes, the longtime veteran of the department, is survived by his wife, daughter and son, police said. Santana, who previously worked as a public works employee and with the San Bernardino County Sheriff’s Department before joining the police department in his hometown, is survived by his wife, daughter and twin sons.

The shooting happened at 4:45 in the afternoon at a motel. Officers responded to a report of domestic violence between a man named Justin Flores and his wife. The caller reported that Flores was stabbing his wife, Diana Flores. Ofcrs. Paredes and Santana went to the door of the motel room and were shot at immediately. A witness heard five shots. Additional officers arrived and also came under fire. Police were able to shoot and kill the Justin Paredes after he ran into the parking lot. But Ofcrs. Paredes and Santana died after being rushed to the hospital.

Ofcrs. Paredes and Santana. (Credit: NBC Los Angeles.)

After the murders, Diana Flores apologized to the officers. She said they had saved her. “I’m so sorry. They didn’t deserve that. They were trying to help me.”

Justin Flores, the Shooter, Had a Long Criminal History

Flores was a two-time felon who had been to prison. In 2009, he was convicted of vehicle theft and given 16 months prison. He only served two months before being paroled. In 2011, he was convicted of burglary and given two years. This time, he served 10 months.

Flores was prosecuted at least a dozen times for things like driving with a suspended license, being under the influence of a controlled substance, or resisting arrest.

In March 2020, Flores was arrested and convicted of being a felon in possession of a firearm. He was also in possession of methamphetamine and ammunition. Instead of being sent back to prison, he was ordered given probation. He only had to serve 20 days in jail. He was on probation when he shot and killed Ofcrs. Paredes and Santana.

Flores Was Out of Custody Because of Gascon’s Policies

According to reporter Bill Melugin, LADA George Gascon did not allow his prosecutors to consider the fact that Flores had a strike on his record when they prosecuted him. A strike would make him ineligible for probation. But the prosecutors were forced to follow Gascon’s policy of ignoring Penal Code section 1170.12. Since then, two separate courts have found that policy to be illegal. Gascon issued a statement:

Mr. Flores was convicted of burglarizing his grandparents’ home more than 10 years ago, resulting in a strike. He was arrested in 2020 and charged with being a felon in possession of a firearm and for possession of narcotics for personal use. Last year, Mr. Flores pleaded guilty to being a felon in possession of a firearm, a felony. The sentence he received in the firearm case was consistent with case resolutions for this type of offense given his criminal history and the nature of the offense. At the time the court sentenced him, Mr. Flores did not have a documented history of violence.

George Gascon’s Policy is to Pay for Flores’s Funeral

Los Angeles County District Attorney George Gascon created controversy on his first day in office, when he promised to weaken enforcement of a wide variety of criminal laws.

Another controversial policy, almost overlooked until now, is to pay for the funerals of individuals killed by police. It reads as follows:

[The Bureau of Victim Services] will also contact the families of individuals killed by police and provide support services including funeral, burial and mental health services immediately following the death regardless of the state of the investigation or charging decision.

You can read the policy yourself here.

In light of this killing, many are questioning the wisdom of this policy. LA County residents are justifiably angry that Gascon seems to be siding with a murder and abuser while offering nothing to the families of the murdered police officers. Aside from these moral questions, many are wondering how the District Attorney can justify using public money in this way. Funding for victim services is not unlimited. Gascon would be taking money out of the hands of crime victims to put it into the hands of a cop-killer’s family.

Notes

A video about the murders:

Why You Shouldn’t Vote for Former Criminal Defense Attorneys

As I sit here waiting for the results to come in on the recall of Chesa Boudin, I’ve been thinking about how he got to where he is. I think, at it’s root, the public has an inaccurate impression of criminal defense attorneys and what they do. This is particularly true when it comes to public defenders. They are viewed as heroic figures, and while there certainly are some heroic public defenders, for the most part, they are no different than the rest of the criminal defense bar. And this is not a heroic group, not by any stretch of the imagination. As the Supreme Court put it in United States v. Wade (1967) 388 U.S. 218:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course.

Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe, but, more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which, in many instances, has little, if any, relation to the search for truth.

Professor Susan Estrich picked up on this idea and ran with it.

Look around the courtroom in a criminal trial and almost everyone is bound by one oath or another to tell the truth: the witnesses, of course; the jury and the judge, bound to find the truth; the prosecutor, whose lying can lead to reversal in the appeals court and at the polls; even members of the press, who can be sued for libel. The one person not pledged to tell the truth, seek the truth, let alone be bound by it, is the defense attorney. For me, the only question that matters in the O.J. Simpson case is whether he did it. Everything turns on that. For Robert L. Shapiro and Johnnie L. Cochran Jr., Simpson’s lawyers, nothing turns on it. Their job is to get Simpson off, innocent or guilty. If he’s innocent, that means advocating the truth. If he’s guilty, it means attacking it.

Criminal defense lawyers are not supposed to put witnesses on the stand who they know will commit perjury; of course, many criminal defense lawyers claim they’re incapable of ever really knowing anything. They can’t hide the murder weapon in their desk drawers, though they’re not obligated to pick it up. Other than that, they’re pretty free to obstruct the search for truth in any way they can, within the rules of evidence. Witnesses are fair game–even if they’re telling the truth. So is every piece of evidence, and every scientific test, even if it was accurately performed. You can impeach the person who found the evidence, question whether it was securely maintained, debate the accuracy of the test, undermine the reliability of the lab–even if you know, all the time, that the witness is telling the truth about where he found the evidence, it is your client’s hat and the test turned up the right answer. You have an absolute right to libel anyone in the courtroom; Det. Mark Fuhrman’s suit against the Simpson legal team is premised on what they said outside of court, in the public “trial.”

The explanation academics offer for the “different mission” of criminal lawyers that allows them such latitude with the truth is the adversary system of justice. The way we find truth, and protect the innocent, in an adversary system of justice is by putting the government to its proof, by arguing each point, each fact. Certainly, no one questions the right of an attorney to attack the credibility of witnesses who are lying, or attack the validity of tests he believes are inaccurate. No one doubts his right to argue to the jury that lies are lies, or that facts are true. No one, in short, is seeking to limit the advocacy of an attorney attacking a prosecution case that is untrue and defending an innocent man.

The harder question is why he is allowed to do these things when their purpose is to obfuscate the truth, to create doubt–and he knows that, or would if he allowed himself to “know” anything. Does every man deserve a defense, even if the only ones available are false defenses? How does it make truth-finding better when a lawyer undermines a truthful witness? If the rape victim is telling the truth, do you get to destroy her anyway? How does it help the jury do its job if you tell them that in is out or up is down or lies are truth.

Nor is it an answer that defense lawyers can’t “know” anything, that they’re not truth finders, and shouldn’t be. That’s the answer you most often hear from practicing lawyers about why any system limiting their advocacy makes no sense. But the ethics codes all reject that: It’s well-established that a defense lawyer can’t put a witness on the stand if he knows that witness will commit perjury–a line that turns precisely on a lawyer’s ability to know the difference between truth and lies. “Don’t ask, don’t tell” may be the posture lawyers take about their client’s guilt; but the same lawyers who try to persuade you, for ethical purposes, that they know nothing will turn around and brag they never try a case unless they know everything, and they can tell when someone is lying. Proving and disproving facts, persuading jurors of truth or falsity, is what lawyers do. We have a whole system of rules for doing it. It doesn’t follow that lawyers are incapable of applying those rules for themselves.

These are not just questions for lawyers to resolve in codes of ethics. More is at stake than just the relationship between a lawyer and his client. This is also about how the criminal-justice system works. It is certainly bound to come up as Americans everywhere tune in for their next installment of Criminal Justice 101.

People who are willing to help a guilty defendant are not always the kinds of people that should be elected to a position of public trust. I know many fine defense attorneys that I trust. I know many excellent judges who are former defense attorneys. There are exceptions to every rule. But the rule for criminal defense attorneys should not be hero worship or hagiography. It should be caution, and even suspicion.

That’s a lesson that San Francisco learned the hard way.

Lying About Money

Public defenders often ask for equal funding for their office and the District Attorney’s Office. Specifically, they claim that their offices are underfunded because they receive less than the District Attorney’s Office. Here’s a tweet from a public defender asking for “parity” of funding between the public defender’s office and the district attorney’s office.

This claim has the veneer of fairness to it, especially to people unfamiliar with the system, who see the two agencies as flip sides of the same coin. But the claim does not stand up to even a short overview of the facts. But type of rhetoric persuades some people. Here’s an article with a headline describing public defenders as having “the odds stacked against them” against “better resourced district attorney’s offices.” The argument worked on the New Orleans City Council:

Is it true that the Public Defender’s Office should have equal funding to the District Attorney’s Office?

The District Attorney’s Office Has More Cases Than the Public Defender’s Office

In Los Angeles, the public defender’s office handles approximately 70% of the felony cases prosecuted in the County. The Alternate Public Defender (used when the Public Defender has a conflict of interest) handles about 15% of the felonies. The remainder is handled by private lawyers of two types. First, bar panel lawyers are paid for their time by the state and are used when both the Public Defender and the Alternate Public Defendant have conflicts of interest. The second type are truly private lawyers, paid directly by the defendant.

By contrast, the district attorney’s office handles 100% of the felonies prosecuted in the County. In a given day in court, a prosecutor will handle cases defended by public defenders, alternate public defenders, bar panel lawyers, and private attorneys. A deputy public defender’s day in court is different. All of her cases are prosecuted by a deputy district attorney.

More cases means more attorneys. To continue with our Los Angeles example, there are 600 deputy public defenders and roughly 850 deputy district attorneys in that county.* In other words, the PD’s office is 70% the size of the DA’s office. This tracks nicely with the fact that they prosecute 70% of the felony cases. In Alameda County, there are 100 public defenders and 150 district attorneys. Statewide, there are 4,113 prosecutors and 2,580 public defenders.

Do Public Defenders Have a Leg to Stand On?

Public defenders do important work: it’s hard to disagree with them when they say they need more money. To be clear, more money is needed for virtually every agency involved in criminal justice, including public defenders. But, needing more money generally is different than arguing that public defenders are under-resourced compared to district attorneys.

Criminal defense attorney Paul Pfingst was elected as district attorney between 1994 and 2002. He said there “is little value” in comparing the district attorney’s and public defender’s budgets, because their respective responsibilities are so different.

Let’s go through some of the public defender’s arguments about why their office should get more money, as compared to the District Attorney’s Office.

PD Claim: Prosecutors Choose Their Own Caseload

Public defenders claim that prosecutors choose their own caseloads. Contrast public defenders, who learn of a new case when they are given the filing packet, whether they want it or not. This argument seems to imply that prosecutors can simply file fewer cases if they are low on resources.

This rests on the shaky assumption that if a prosecutor doesn’t have the resources to prosecute a case, they will just ignore it. Statistics suggest that such a case will get filed anyway, and the prosecutor will attempt to make room for it by plea-bargaining away other cases. In other words, short-changing prosecutor’s offices doesn’t result in fewer cases, it results in more leniency. Also, this argument is silent on why the prosecutors should get paid less per case than public defenders just because they make filing decisions.

PD Claim: A Prosecutor’s Job is Easier

Public defenders also claim that prosecutors have an easier job.

The DA’s office has control of cases, we don’t. They know which cases are going to die and put no work into them. We still have the person who is charged with that crime who wants status updates, maybe we’ve sent out investigators out. Maybe we have to file motions to dismiss and they never respond because they know full well they have no case and they would rather a judge say it’s dismissed because then the DA can blame the court instead of saying “we dismissed it.”

(Ole TD @timmydhue on Twitter.)

Deputy public defenders often forget that it takes work to decide which cases should be filed and which should be declined. Paul Pingst, defense attorney turned DA, said prosecutors have to investigate many more cases than those that end up in court. They have to handle victims, witnesses and evidence for every referral from police and sheriff’s departments; and they must prepare every complaint as if it will land before a jury. “If you don’t make a convincing case you’re going to get more trials,” he said. “If you cut corners on the investigation, then defense thinks they have a shot at winning at trial.” In other words, cases don’t simply spring into being. Filing a case is a lengthy and delicate task that public defenders don’t do.

Deputy district attorneys must often shore up weak areas in their cases by directing criminal investigations. On one end, this might mean listening to jail calls. On the other, this could mean overseeing a wiretap, executing search warrants, or interrogating witnesses. Prosecutors are often called out to especially important crime scenes, such as murders, to assist before a case is ever presented.

The claim that prosecutors have easier jobs is most jarring when it is time for trial. For a prosecutor, putting on a criminal trial is like putting on a play. You have to get evidence to court, you have to get witnesses to court, you have to get officers to court. Unlike a play, the prosecutor has no idea what any of these people are going to show up, much less what they are going to say, and must able to adapt to circumstances as they happen. By contrast, the public defender rarely, if ever, puts on a defense case. They usually rely only on cross-examination of the People’s witnesses. There are exceptions to this rule. But viewed in the aggregate, a defense case is vanishingly rare, and a defense case with more witnesses and evidence than a prosecution case is unheard of. In other words, trial preparation for a defense lawyer is an order of magnitude lighter than for a prosecutor.

PD Claim: Prosecutors Don’t Have Clients

“The difference is that prosecutors don’t have clients. Full stop. They do not represent people; they represent the State. There is no just comparison between an unaccountable imprisoner of the dubiously convicted and a defender of humans when the defenders always get paid less.” (Alexander Ignatiev @alexIgnatiev on Twitter.)

Speaking as an unaccountable imprisoner of the dubiously convicted, I find a lot wrong with this. First, the prosecutor does have a client: it’s the people in the community. Second, this community includes crime victims, who are often extremely involved, especially in serious cases like murders, rapes, or assaults. The prosecutor is also responsible to the officers who investigated the case, and who want to see it handled effectively. And finally, the prosecutor is susceptible to pressure from the media in ways that the public defender is not.

Finally, for anyone who doesn’t know, deputy public defenders and deputy district attorneys are on the exact same pay scale.

PD Claim: Prosecutors Have Better Staff

Others complain that the DA’s office has massive investigative units and support staff that public defenders’ offices lack. (Rob Harris @RealRobH1 on Twitter.) Although the public defenders have investigators and support staff of their own, they believe they are inadequate. Without any data in support of this argument, it might just be generalized complaining that’s not grounded in fact. It would be hard for a public defender to affirmatively show that the secretaries and paralegals don’t work as effectively as their DA counterparts.

But what about the police? Defenders seem to believe that the police only work for the prosecution, and not the community in general, which includes the defendant. The reason the police don’t appear to work for the defense is that prosecutors don’t bring cases against the advice of the police. Those cases are simply not filed. The work the police do to exonerate the innocent is done almost entirely out of the courtroom, and out of sight of the public defenders who make this kinds of arguments.

The Verdict

Public Defender’s Offices and District Attorney’s Offices do different things. Since the DA’s handle more cases, they get more resources. This is simple enough that those of us in the field understand it implicitly. But people outside the field can be misled. There are public defenders on Twitter trying to mislead people in order to get a larger budget. That’s wrong. PDs, and everyone in the criminal justice system, can make the case for more money with the truth, and nothing but the truth, so help us God.

Notes

An overview of the problem by The San Diego Union-Tribune.

The California State Senate Committee on Public Safety studied the State Public Defender to determine appropriate workloads.

The cleverly titled article The State Never Rests looks at whether excessive prosecutor caseloads harms criminal defendants.

* The LADA website says approximately 1,000 attorneys, however, over a hundred have left in the wake of the election of District Attorney George Gason.

Are There Deputy Gangs at LASD?

As Los Angeles County Sheriff Alex Villanueva’s reelection campaign heats up, critics have accused his agency of harboring what they call “deputy gangs.” At the same time, I read a disturbing article about a deputy who shot off another deputy’s tattoo. The author alleged that the tattoo was shot off because changes to the design were not “cleared with deputy gang leadership.” This seemed so disconnected from my personal experience in the system that I had to look into it.

So are there gangs of LASD deputies, just like there are gangs of criminals in Los Angeles? Is this true, or is it a smear?

The Case That There Are Deputy Gangs

In 2019, the FBI investigated LASD deputies for allegedly using excessive force. The LA Times summarized the investigation. Deputies were accused of belonging to a secret society at the East Los Angeles Station called the Banditos. This group had matching tattoos. They were accused of recruiting Latino deputies into the group and retaliating against those who rebuff them. The investigation was spurred by a group of deputies who sued over a hostile work environment. Specifically, the suing deputies complained about a fight involving members of the Banditos at an off-duty party. Four deputies allegedly attacked a rookie. The four men were investigated by LASD and a criminal referral was made to the District Attorney’s Office.

The LA Times and the Los Angeles Daily News both use the word “gang” to describe this issue. This editorial decision is hopefully made by responsible professionals based on the totality of circumstances. LASD deputies at all levels have themselves referred to the subgroups as gangs. This is particularly common when former LASD deputies are running for Sheriff.

The allegation that there are deputy gangs has become so common that there is even a Wikipedia article on the subject. The article uses the term gangs. It claims that the LASD “acknowledged” a gang called the “Little Devils” in an internal memo in 1973. There is no citation for this assertion, but I found the memo, which you can see here. It does not acknowledge a gang. Indeed, the word “gang” does not appear in the memo. The Wikipedia article also claims that some people “believe” that deputy gangs were involved in the death of a reporter during a protest. This assertion is linked to another website which explains that journalist was accidentally hit with a tear gas cannister after ignoring an order to disperse.

The Case That These Groups Are Not Deputy Gangs

Gang members and sheriff’s deputies are not equivalent. LASD deputies are extensively background-checked. They do not have criminal records. There are educational requirements for deputies, who must also pass a rigorous training process. They are supervised in an organized hierarchy that mimics a military command structure. This supervision is controlled by elected officials. There are independent watchdogs that also review deputies’ conduct. The deputies wear cameras that document their every interaction with the public. Street gangs are not run this way.

The LASD has policies that specifically bar department members from participating in any groups that violate anyone rights. LASD has warned its deputies that organizing into a group with a tattoo will cause the department to get sued. But the 1st Amendment prevents LASD from banning the tattoos altogether. Villanueva has asked that deputies with matching tattoos have them removed.

Deputies themselves do not consider the groups to be gangs. They refer to the them as “drinking groups,” “intramural sports teams,” or “social clubs.” LASD correctly notes that the law has a definition for “criminal street gang” that these groups do not meet. (See Pen. Code section 186.22.) LASD points out that the primary purpose of a gang is to commit crimes, but the primary purpose of the LASD groups is to promote comradery. Others have argue

In this article, Vox describes “cliques of officers who allegedly engage in violent and potentially criminal behavior.” The “most commonly cited feature” is tattoos. Vox appears to be one of the few media outlets who has decided against using gang language.

Although the LA Times, Daily News, and other media use the word “gangs” to describe these groups, this incendiary language may be designed to attract readers and sell advertising, rather than accurately reflect reality.

The LA Times gave some space to dissenting opinions. “Defenders say the cliques are harmless fraternities, likening them to close-knit groups in the military.” Sheriff Alex Villanueva says there are no gangs in LASD. He described groups of friends with matching tattoos as a “cultural norm” and a source of intergenerational hazing. He said there is nothing wrong with the clubs as long as they don’t promote misconduct.

Conclusion

The heart of the issue seems to be how to describe groups of deputies who work and socialize together, and who have matching tattoos. This is common in the military, going all the way back to ancient Rome. It’s also common for college students in fraternities or sororities. The cast members of the Lord of the Rings trilogy famously worked together, socialized together, and got matching tattoos. So did the cast of the Avengers and Suicide Squad. The practice is common among bands.

People like this, with matching tattoos, commit crimes and misconduct. Returning to the Lord of the Rings example, actor Viggo Mortensen was arrested at Dulles Airport. Sean Bean, another Lord of the Rings actor with a matching tattoo, was arrested for spousal assault. Still, we obviously don’t consider these actors to be gang members.

The fact that gang members have matching tattoos does not make the practice gang-related. The fact that gang members have matching tattoos does not transform everyone with matching tattoos into gang members as well. Journalists are loosely using the word “gang” to describe a practice that is common in many areas of law-abiding society. They may be doing it out of bias against police, or to generate clicks, or for some other reason. Whatever the reasons, this practice should stop, until and unless new evidence comes to light.

Sources

A short history of LASD.

50 Years of Deputy Gangs: Identifying Root Causes and Effects to Advocate for Meaningful Reform. A report prepared by a professor at Loyola Law School.

A Tradition of Violence: The History of Deputy Gangs in the Los Angeles County Sheriff’s Department. A 15-part “investigative series” on Knock-LA. I didn’t read the whole thing.

A Tale of Two Recalls, and Maybe a Third

San Francisco voters overwhelming recalled several members of the school board on February 15th. Among those booted out of office was Alison Collins, who described merit-based school admission systems as “racist” and fought to take down a historical mural depicting the life of George Washington. The straw that broke the camel’s back was a series of tweets in which she used a racial slur to describe Asian people.

Alison Collins. Credit: Alisoncollinssf.com

The recall effort was about more than just one woman’s racist tweets. The school board that Collins served on got national attention for a string of controversies. The most important was the board’s decision to keep schools closed longer, and reopen slower, than other similar districts. During this time, the board focused on ending merit-based admissions and renaming schools whose namesakes were no longer considered politically correct. Each eligible school board member was recalled with more than 70% of the vote. Collins was recalled 78% to 22%.

Two Recalls

The successful school board recall is linked in the public mind with another San Francisco recall: that of District Attorney Chesa Boudin. Boudin is the son of two members of the Weather Underground, a radical militant organization active in the 1960s and 1970s. Both parents were sentenced to life in prison for the murder of two police officers and a security guard. In an almost-Shakespearian plot, Boudin grew up to become a criminal defense lawyer. In 2019, Boudin ran for District Attorney and succeeded in what many described as a hostile takeover.

When Boudin took office he changed the way crimes were prosecuted in San Francisco. His supporters described these changes as reforms and his opponents described them as “soft on crime.” In an unusual court hearing, a Superior Court judge described Boudin’s management of his office as disorganized, inadvertent, and marred by constant turnover and managerial reorganization. The rate of property crime began to increase, and has continued to increase during his tenure. Drug use and homelessness in San Francisco have become a cliche in the media.

Does Boudin Need to Worry About the Results of the School Board Recall?

Alison Collins and Chesa Boudin are both polarizing liberal figures in San Francisco politics. Almost immediately after the school board recall, people began to wonder if it would predict the district attorney recall. For example, the San Francisco Chronical ran an article titled, “Should Chesa Boudin Be Worried About the School Board Recall Results?” The Chronicle concluded that the groups that voted for the school board recall are “unlikely to seamlessly transfer” their “recall fervor” to Boudin. The Washington Post’s Henry Olsen wrote that Chesa Boudin, and other national figures, should take notice that they “are not what the voters want.” The Spectator wrote that “Chesa Boudin, facing his own recall election on June 7, might be the next to go.” They noted that San Francisco mayor London Breed and police chief Bill Scott have signaled support for Boudin’s recall.

And of course, Twitter has an opinion:

Whatever the case may be, opponents of the wave of changes to the criminal justice system are hopeful. Many speak of the “pendulum” finally swinging away from progressive changes. Whatever the case may be, on June 7, progressive district attorney George Gascon may be watching Boudin’s recall results the same way that Boudin watched those of Alison Collins.

Notes

Alison Collins’ quote about admissions was “When talking about merit, meritocracy and especially meritocracy based on standardized testing…those are racist systems.… You can’t talk about social justice, and then say you want to have a selective school that keeps certain kids out from the neighborhoods that you think are dangerous.” Meanwhile, Collins’ children attended the Ruth Asawa School of the Arts, which also has merit-based admissions requirements.

Collins is an interesting person. She is half black and married to a white real estate developer. They live in Russian Hill, where houses can sell for more than $10,000,000. Although their two daughters are half white and one quarter black, Collins describes them as black.

After the controversy over Collins’ tweets, she sued her own school board for $87 million dollars. If she had won, that $87 million dollars she asked for would leave the hands of teachers and students and head right to her house on Russian Hill. It’s hard to imagine that someone who cares about local public education would want to do something like that. Fortunately for the students, a judge dismissed her lawsuit, saying it had no merit and there was no need for argument in court. Unfortunately, defending the lawsuit still cost the school district $110,000.

Crime Statistics in Los Angeles

I was listening to public radio this morning when I heard that murder was up 11.8%. If my kids misbehaved 11.8% more I’d probably be furious. But that still felt like a small increase compared to what I’ve seen in Los Angeles. So here’s some more data for context. All taken together, it seems to show a city returning to the crisis-level crime of the 1980s and 1990s, but not there yet.

Over the last two years, crime in Los Angeles has exploded. In 2021, there were 397 murders in Los Angeles, up 11.8% from 2020. This may not seem so bad, but crime is up 53.9% from 2019. Los Angeles saw the most homicides since 2007, when there were 395 killings. The Los Angeles County Sheriff’s Department, whose jurisdiction is the County of Los Angeles, reported 201 homicides in 2020, up from 145 in 2019. LASD has not given an official number of homicides for 2021, but Sheriff Alex Villanueva estimated the number at 280. This is a 2-year increase of nearly 100%.

By contrast, there were 797 homicides in Chicago and 485 in New York City. Los Angeles is the 5th most dangerous major city in the report. It compares unfavorably to San Diego, which has less than half the per-capita homicides, and San Jose, which has about a third. Interestingly, LAPD data separates out LASD data in the chart below, but did not do that for any other city. Combining the data would make the LAPD’s crime jump look much larger.

Here’s a look at per capita homicides, which helps contextualize the numbers in light of LA’s growing population.

Homicides per Capita in the City of Los Angeles. Source: LAPD

1,459 people were shot in Los Angeles in 2021. That’s up from 946 in 2019. LAPD officers fired their weapons 37 times in 2021, up from 27 in 2020, and 20 in 2019. 18 people were killed in 2021 from officer-involved shootings.

People Shot in Los Angeles. Source: LAPD

Violent crime in the city increased 3.9% from 2020 to 2021. Property crime rose 4.2% last year over 2020, but was less than 2019.

Notes

Most of the crime data from the City of Los Angeles is taken from LAPD’s 2021 Crime & Initiatives Report. The charts are excellent.

LASD data is here. It does not appear to be as up-to-date as LAPD. For example, here is their historical homicide chart:

Here’s a look at City of Los Angeles homicides going back a bit farther for context:

City of Los Angeles Homicide Totals. Source: LAPD

Briefing Complete in Union Lawsuits Against Gascon

The First Lawsuit

The Association of Deputy District Attorneys for Los Angeles County (ADDA) filed a lawsuit on December 30, 2020 to stop several illegal policies put out by newly-elected district attorney George Gascon. The Superior Court agreed with the ADDA and filed a temporary injunction on February 8, 2021. Gascon appealed on March 19, 2021. He filed his opening brief on August 17, 2021. The ADDA responded on November 16, 2021. Briefing was completed when Gascon filed a reply on December 6, 2021.

There were two amicus curiae briefs. The first was from the American Civil Liberties Union of Southern California. The second was written by Erwin Chemerinsky, law professor at the University of California at Berkeley, writing on behalf of 67 other progressive prosecutors. The ADDA responded on January 3, 2022.

As of today, the parties are awaiting a decision by the Second District Court of Appeal.

Alisa Blair. Credit Voyagela.com.

The Second Lawsuit

On October 14, 2021, the ADDA sought an injunction in Superior Court to prevent District Attorney George Gascon from appointing ineligible political supporters to civil service protected positions in the District Attorney’s Office. Specifically, Gascon appointed former public defenders:

  1. Alisa Blair;
  2. Tiffiny Blacknell; and
  3. Shelan Joseph.

He did this outside of the merit system created by the County Charter to root out political bias in hiring and promotion. None of these public defenders had taken or passed the test required for promotion, nor did they have the required experience as a prosecutor. There were 53 candidates who had followed the rules and had been certified as eligible under the County Charter. All 53 were passed over.  The ADDA also appealed before the Civil Service Commission.

On November 8, 2021, a judge denied the ADDA’s request for a preliminary injunction. He held that the appeal before the Civil Service Commission should be completed before an injunction issued. A day before the court denied the request, Gascon promoted 53 internal candidates. Lawyers said this appeared to be an attempt to moot the lawsuit and the Civil Service proceedings. The parties held a trial setting conference on December 3, 2021, which was continued. Then, Gascon filed a Motion for Stay of Proceedings on December 21, which the ADDA opposed on January 3, 2022. Briefing was completed with Gascon ‘s reply on January 7th. The Court heard the motion on January 14, 2022 and denied it. That same day, the court continued a trial setting conference for a second time.

The next hearing is another trial setting conference on April 20, 2022.