Several of the new special directives require prosecutors to tell the court things that they may believe are false. For example, that striking enhancements is in the interests of justice, or that a mere sentencing triad is sufficient to protect public safety. Even more troubling is the directive to tell the courts that the Three Strikes Law is unconstitutional. This is an assertion that is blatantly misstates well-settled law. Don’t make false statements to the court, even though the directives require you to.
Special Directive 20-14
Special Directive 20-14 is really long. There’s a section at page 3 called “Application of Sentence Enhancement Policy for Open/Pending Cases.” It says that you “shall inform the Court” of certain things at the next hearing.
The directive has a script that you must follow:
At the direction of the Los Angeles County District Attorney, in accordance with Special Directive 20-08 concerning enhancements and allegations, and in the interest of justice, the People hereby
- join in the Defendant’s motion to strike all alleged sentence enhancement(s); or
- move to dismiss all alleged sentence enhancement(s) named in the information for all counts.
The problem is the phrase “in the interests of justice.” But more on that below. Special Directive 20-14 was soon followed by another directive with an even longer script.
Special Directive 20-08.1
Special Directive 20-08.1 was issued a week after the original. It seems reasonable to infer that it was issued in response to judges asking whether dismissal of enhancements was in the interests of justice. It also seems reasonable to infer that many prosecutors answered “no.” So this directive has a script.
Deputies “shall” make the following record:
“The People move to dismiss and withdraw any strike prior (or other enhancement) in this case. We submit that punishment provided within the sentencing triad of the substantive charge(s) in this case are sufficient to protect public safety and serve justice. Penal Code section 1385 authorizes the People to seek dismissal of all strike prior(s) (or other enhancements) when in the interests of justice. Supreme Court authority directs this Court to determine those interests by balancing the rights of the defendant and those of society ‘as represented by the People.’ The California Constitution and State Supreme Court precedent further vest the District Attorney with sole authority to determine whom to charge, what charges to file and pursue, and what punishment to seek. That power cannot be stripped from the District Attorney by the Legislature, Judiciary, or voter initiative without amending the California Constitution. It is the position of this office that Penal Code section 1170.12(d)(2) and Penal Code 667(f)(1) are unconstitutional and infringe on this authority. Additional punishment provided by sentencing enhancements or special allegations provide no deterrent effect or public safety benefit of incapacitation–in fact, the opposite may be true, wasting critical financial state and local resources.”
This giant block of text is followed by another section with case law. Since we all have law degrees and can read a case for ourselves, you will immediately notice that the citations don’t stand for what the script says they do. That’s a huge problem. You can’t know this case law and pretend that these things are true, especially the stuff about Three Strikes. But that’s just the start of the problems.
Reading These Scripts Violates The Rules of Professional Conduct
The problem is that your boss can’t force you say things to the court that are false. Rules of Professional Conduct, Rule 3.3, states:
“(a) A lawyer shall not knowingly, (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer, (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; […].”
Additionally, Rules of Professional Conduct, rule 8.4. states:
“It is professional misconduct for a lawyer to: (a) violate these rules or the State Bar Act, knowingly assist, solicit, or induce another to do so, or do so through the acts of another; … (c) engage in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation; [or] (d) engage in conduct that is prejudicial to the administration of justice ….”
There’s a couple of things to unpack here. First, Gascon committed misconduct when he asked “solicited or induced” you, his deputy, to make intentional misrepresentations about the law. Second, it’s up to you to determine what is true and what isn’t. There is no exception for “my boss told me to.” You hold the bar card: you make the call. Third, you are forbidden from making even a “reckless” misrepresentation. That means you must understand the issues in the script, especially the constitutionality of Three Strikes, because you can violate the ethics rule whether you studied the issues or not.
If you are a supervisor, you should also be aware of Rule 5.1, Responsibilities of Managerial and Supervisory Lawyers.
(b) A lawyer having direct supervisory authority over another lawyer, whether or not a member or employee of the same law firm, shall make reasonable efforts to ensure that the other lawyer complies with these rules and the State Bar Act.
(c) A lawyer shall be responsible for another lawyer’s violation of these rules and the State Bar Act if: (1) the lawyer orders […] the conduct involved; or (2) the lawyer […] knows of the conduct […] but fails to take remedial action.
If you order your prosecutors to read these scripts, or know that they are reading them and fail to stop it, you are violating the ethical rules too. A bar complaint has already been filed against a head deputy on these grounds.
Reading These Scripts Violates the Business and Professions Code
Business and Professions Code section 6068 reads:
“It is the duty of an attorney to do all of the following: (a) To support the Constitution and Laws of the United States and of this state; (b) To maintain the respect due to the courts of justice and judicial officers; (c) to counsel and maintain those actions, proceedings, or defense only as appear to him or her legal or just, except the defense of a person charged with a public offense; and (d) to employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”
Here we see the same warnings again. You must not do things that do not appear to you be legal. You must not mislead the judge by an artifice or false statement of fact or law.
What Should I Do?
You should follow the spirit but not the letter of these directives. You are still a deputy of the elected DA and should try to implement his policies, when they are legal. But you cannot legally say that something is in the interests of justice when you believe the contrary.
Use the script in Special Directive 20-14 but leave out the phrase “in the interests of justice” if you do not agree. If the court asks you whether dismissal would be in the interests of justice, be honest.
The script in Special Directive 20-08.1 is full of things that you should not say. Most prosecutors do not believe that “punishment provided within the sentencing triad of the substantive charge(s) in this case are sufficient to protect public safety” when enhancements apply. If you believe it, say it. But if you don’t believe it, don’t say it, because that is misleading the court.
Here is another statement that most prosecutors believe is false but that appears in the script. “The California Constitution and State Supreme Court precedent further vest the District Attorney with sole authority to determine whom to charge, what charges to file and pursue, and what punishment to seek.” You should know that the legislature requires you to plead and prove certain enhancements, and that you do not have sole authority in that area. Moreover, you (obviously) do not have sole authority over what punishment to seek, since you are bound by the law.
Here’s a third questionable statement you should avoid: “Additional punishment provided by sentencing enhancements or special allegations provide no deterrent effect or public safety benefit of incapacitation–in fact, the opposite may be true, wasting critical financial state and local resources.”
Do not tell the court that the Three Strikes Law is unconstitutional. It is constitutional. If you take away nothing else, do not say “Penal Code section 1170.12(d)(2) and Penal Code 667(f)(1) are unconstitutional.” This is in the script in Special Directive 20-08.1. This is blatantly untrue, and you should know it.