This page is designed to help Deputy District Attorneys in Los Angeles with the legal and ethical problems created by recent policy changes. As a general disclaimer, prosecutors at LADA are the deputies of the elected DA and should work to assist him. However, they are not required to assist him if doing so would violate the law or ethical rules.
Are The New Special Directives Legal?
Most of them are. But many of them are not. What follows is a summary of the ways in which the special directives are illegal. Click the links for more details.
The directive not to file strike offense is illegal. The California Constitution and the Penal Code require you to plead and prove strike enhancements. They must be filed, despite Special Directive 20-08. The ADDA sued over this (and other issues) and won an injunction. Then, Gascon tried to avoid the injunction by issuing new orders, which are also illegal.
The Three Strikes Law is constitutional, despite what your boss says. And anyway, it’s not up to him. Don’t follow his orders to tell the courts otherwise, since you cannot mislead courts about the law.
Special Directive 20-08 does not allow you to “dismiss or withdraw” enhancements. Those decisions belong to the court, and must be in the interests of justice.
Special Directive 20-14 and 20-08.1 require you to say things to the court that you might not believe are true. You can’t say things that aren’t true to the court. You can’t let the prosecutors you supervise do it either. That violates the Rules of Professional Conduct and the Business and Professions Code.
You cannot move to dismiss a prior before the preliminary hearing. The limited powers of a magistrate at preliminary hearing do not include the power to strike a prior conviction.
You can only move to dismiss certain gun enhancements at sentencing, not before.
Strict compliance with the new orders violates Marsy’s Law. This law requires you to get in touch with the victims before you make the motions required by the special directives. They have a chance to try to talk the judge out of going along.
Your Union Is Suing Your Boss
The Los Angeles Association of Deputy District Attorneys sued George Gascon on December 30, 2020. You can find the documents here. The California District Attorney’s Association filed an amicus brief supporting the union. They also published a letter explaining why the new policies are an “emerging public safety tragedy.” They obtained a preliminary injunction against Gascon, who then turned around and tried to avoid it with new special directives.
What LADA’s Appellate Division Told Gascon About His Directives
LADA’s Appellate Division analyzed the new special directives and identified problem areas. They warned Gascon and his administration that many of them were illegal. They also warned him that his scripts would cause ethical problems for the deputies required to read them.
You can download and read the memoranda here.
Can I Speak Out?
Yes. You should read Garcetti v. Ceballos (2006) 547 U.S. 410, which discusses your First Amendment rights as public employees. The case actually came out of the Los Angeles County District Attorney’s Office in 2006. Here’s a brief summary.
Several deputy DAs from Los Angeles County have already spoken out against the new changes.
Can Gascon Be Recalled?
Yes, but it’s not easy. Just getting a recall on the ballot requires collecting lots of signatures in a short amount of time. There are already groups trying to do this.
What If They Try to Fire Me?
LA DDAs have civil service protections. You have rights if the office tries to fire you or demote you. For example, you may force the office to explain why they are disciplining you to the Civil Service Commission. If the Commission finds the reasons to be insufficient, you will be reinstated.
Also, you are allowed to be represented by your union in any meeting with a supervisor which you reasonably believe can result in discipline. (NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251.)
I [state your name], do solemnly swear (or affirm) that I will support and defendant the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.