Tag Archives: Chesa Boudin

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.

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.

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.

Will Reed Hastings Change His Mind?

The Netflix CEO supported changes to the law that may have contributed to a death in the family of his partner. He may have been convinced to support weakening the criminal law by the media, but will this personal tragedy be enough to wake him up?

Reed Hastings and Jacqueline Avant

Reed Hastings’ first name is Wilmot, which means “little Wilhelm” in German. Hastings went to a fancy Boston private school, joined the Marines, washed out, and joined the Peace Corp. His favorite movie is Sophie’s Choice, which is an odd pick, to say the least. Hastings is famous for co-founding Netflix. He came up with the idea after losing a rental copy of Apollo 13.

Hastings is generous with his money. For example, he has donated $1,000,000 to Los Angeles Unified School District to help with COVID relief. In 2020 Hastings donated $1,000,000 to the Center for Policing Equity, a research center founded at UCLA. That group was founded by a professor who also founded the “California-based queer hip hop group Deep Dickollective.” That detail is irrelevant to his work at the CPE, but it does make me wonder if he is a serious person.

Hasting’s wife, Patty Quillin, is also charitable and political. She opposed Proposition 20 which would have toughened some laws against theft. “Issues surrounding social and racial justice animate her,” according to the Hollywood Reporter. She donated to San Francisco District Attorney Chesa Boudin. But that’s not the only District Attorney that Hastings’ family funded. Quillin also donated 1,253,000 to Los Angeles County District Attorney George Gascon. Hastings donated $500,000 himself.

Ted Sarandos is co-CEO of Netflix alongside Hastings. His wife is Nicole Avant, and his mother-in-law is Jacqueline Avant. Why is it important to know who Reed Hastings’ partner’s mother-in-law is?

Jacqueline Avant Was Shot and Killed in Her Home

The Beverly Hills Police Department received a call at 2:23 a.m. about a home invasion. Someone came onto her property, shot at her security guard, and smashed a sliding glass door. Apparently the security guard did not return fire. The burglar entered the house and shot Avant in the stomach. Her husband, Clarence Avant, was home at the time. Jacqueline was alert and speaking when paramedics arrived, but later died. She was 81.

Suspect Ariel Maynor

The Beverly Hills Police Department arrested a suspect, Ariel Maynor, and confiscated his AR-15 rifle. The 29-year-old’s vehicle was seen on surveillance videos driving eastbound out of the city after the shooting. Maynor was arrested after he apparently committed a second shooting and burglary just hours later. He invaded the home of a father and his 17-year-old daughter. LAPD’s Hollywood Division was alerted to a shooting and burglary call. They found Maynor in the back yard of the home with a self-inflicted gunshot wound to the foot. The watch commander realized that the the two crimes might be connected and summoned Beverly Hills detectives.

Maynor is a parolee. He was released on September 1 after serving four years for second-degree robbery. He has previous convictions for robbery and grand theft. He is supposed to be under the supervision of the parole department. According to the Beverly Hills police, “it didn’t sound as if he was reporting to his parole agent at all.” Parole violations, such as failure to report to a parole agent, can return a felon to prison.

Jacqueline Avant is Not The Only One

Crime is up in Los Angeles. According to the LA Times:

Homicides are up 46.7% compared with 2019, while shooting victims are up 51.4%, according to police data. As of the end of November, there had been 359 homicides in L.A. in 2021, compared with 355 in all of 2020. There have not been more homicides in one year since 2008, which ended with 384.

That newspaper, whose editorializing on crime is slanted towards “progressive prosecutors,” ran an article titled, “Brazen Crimes Shake LA.” The authors note that “violent crime has jumped sharply in L.A.” The New York Post describes a “violent LA crime wave” and include a quote:

“It’s a s–t show over here,” said LAPD Det. Jamie McBride, a director of the Los Angeles Police Protective League, a police union. “Bad guys are released quicker than we can finish the paper work, and that’s just the tip of the iceberg.”

Why Does This Matter?

This matters to the family of Jacqueline Avant, who should not have been murdered in her own home, even at 81. But it also implicates the weakening of the justice system advocated by Hastings. Before Hastings and others poured money into the LADA race last year, the murderer of Mrs. Avant would have faced stiff penalties. But now, thanks in part to Mr. Hastings, he will not have to worry about these stiff penalties. Tragically, Mrs. Avant’s family will also not have the benefit of the laws our legislature put in place to prevent this type of murder from happening.

Prosecutors will have several charges to choose from. Before Hastings’ money got involved, prosecutors would have filed murder in the first degree, with the special circumstance of murder in the course of burglary. This would make Maynor eligible for death or life without parole. They could also choose leniency, although it’s not clear why they would. If they choose not to seek the special circumstance, Maynor would be eligible for parole in 25 years. This could be doubled due to his prior strikes to 50 years. Prosecutors could also extend his sentence for using an AR-15 by an additional life sentence with parole eligibility in 25 years. In other words, prosecutors could choose between death, life with no parole, or life with parole in 75 years.

The District Attorney’s Office files the charges and enhancements. If Maynor is convicted, the judge will sentence him, and can decide which of these to use. The important point is that the DA has to use these tools just to give the judge the option to take parole off the table. If the DA doesn’t file these charges, the judge cannot file them on her own, and Maynor may parole one day.

The problem is, LADA George Gascon is refusing to apply the special circumstance law in any case. And ironically this is exactly what Hastings wanted. Under Gascon, everybody is eligible for parole, including repeat violent felons, like Maynor. He believes that it is his right, not the legislature’s, to decide which laws get applied in Los Angeles County. For example, Gascon recently failed to apply the special circumstance enhancement to a man who shot and killed his four children and mother in law in Lancaster.

Maynor already got a break from the DA’s office under Gascon’s predecessor, Jackie Lacey. In 2018 he was convicted of robbery. Because of his record, he was ineligible for probation. The minimum he should have been eligible to receive was 2 years, the low term for robbery. This should have been doubled due to his prior strike. He also had a prior “serious felony” conviction, which adds an additional 5 years, bringing his total minimum exposure to 9 years. However, the DA’s office appears to have “struck” the serious felony conviction that would have added 5 years. Jacqueline Avant would be alive today if that 5 years had been imposed.

Reed Hastings and his wife support policies that enable killings of this type. Clearly, Maynor needed to do more time. Hastings, who seems like a man who means well, was sold a scam labeled “reform.” Many others are in the same boat. Compassion for our communities, especially communities of color, sometimes means being tough on crime. As long as some focus exclusively on compassion for convicted criminals, victims will continue to suffer. But our media diet, our income-segregated neighborhoods, and our politics mean that some people will never know how crime works in real life. It takes a tragedy among their friends and neighbors before they wake up. Hopefully Reed Hastings and his wife will wake up.

Notes

A columnist in the LA Times says, “Don’t Turn Jacqueline Avant’s Shooting Into a Political Football.” They interviewed a family friend of Jacqueline Avant’s, who said they were “cringing,” and continued, “we don’t want this to become a battle cry of the left or the right.” They did not explain why voters weren’t entitled to a vivid example of the consequences of their choices.

Nicole Avant, the daughter of the victim, hired an armed security guard. That’s not exactly a ringing endorsement of the ability of local police to keep her safe.

A careful read of the LA Times coverage mentioned above shows the reporters did not keep their politics out of the article. Shootings and murders are up about 50% this year, but the authors did not describe the violence as a “crime wave.” Instead, they are quick to point out that crime has also jumped in other cities, and that maybe the pandemic is to blame, or “COVID-19 angst” or “a new holiday season upon which brick-and-mortar retailers are relying to stay afloat.” They do not speculate about whether recent dramatic changes to the criminal law are to blame. Instead, they speculate about “pandemic related policies that have allowed many nonviolent arrestees to be released without bail” instead of pointing out that the DA George Gascon’s policy is to never request bail. This is is almost shockingly dishonest. The DA has ordered his prosecutors not to request bail in virtually all cases. How can the reporters describe that as a “pandemic related policy?” This exactly the kind of bias that misleads people, because it not likely to be noticed by the general reader. The reporters also decided to describe the approach of Gascon as a “strong reform agenda,” instead of using a neutral term. They quote a business owner who wants the laws to be enforced in two paragraphs but give five paragraphs to BLM leader Melina Abdullah.

Judge Rules Gascon Gave Illegal 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.”

Judge Chalfant’s Preliminary InjunctionDownload

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.

The LA Times, which endorsed Gascon, also ran an editorial titled, “Archaic ‘tough-on-crime’ holdouts are refusing to let George Gascon do his job.” Missing the point entirely, the editorial focuses on the history of policing and the CDCR, and decries mass incarceration. It does not address the disturbing fact that an elected official ordered his subordinates to do illegal and unethical things. The board wrote, “elections mean little if victors are denied the ability to shift direction.” Of course, election victors can’t shift direction by breaking the law. The Metropolitan News-Enterprise was ran a detailed refutation of the LA Times’ position. Finally, an LA Times opinion columnist ran a pro-Gascon piece as well.

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.

Gascon critic and LA Deputy District Attorney John Hatami said:

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.

One of Gascon’s predecessors, Steve Cooley, told the Met News:

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.

Special Directive 21-01 – Revised Policies Pursuant to Preliminary InjunctionDownload

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.”

Notes

Cover Photo Credit (Youtube.com)

What Other DAs are Saying about Gascon

CDAA and El Dorado County

El Dorado County District Attorney Vern Pierson is president of the California District Attorneys Association, a training and advocacy group for prosecutors. In a press release, CDAA “expressed grave concern regarding some of the new Los Angeles County District Attorney’s policies.”

CDAA will file an amicus brief in the lawsuit brought by the ADDA over Gascon’s new policies.

Kern County

Kern County District Attorney Cynthia Zimmer wrote a scathing letter in the Bakersfield Californian. Describing Gascon’s policies as “an exciting opportunity” for criminals, she invited them to leave her county and go to Los Angeles. She said that Gascon had abandoned victims of crime and been an ally to criminals.

Zimmer discussed Gascon’s directive to not file strike offenses. She said, “Ironically, on the day he swore an oath to uphold the laws of California, Gascon immediately vowed to break them.” “For you criminals, that means the new LA DA is literally willing to break the law to ensure you don’t face the punishment you deserve!”

Sacramento County

Sacramento County District Attorney Anne Marie Schubert spoke with the California Globe about Gascon. George Gascón has never been nor will he ever be a real prosecutor,” Schubert said. “The core principle of being a real prosecutor is standing up for victims’ rights. Within two minutes of being sworn in as the District Attorney of Los Angeles County, he made it abundantly clear that crime victims and protecting the public against violent criminals does not matter to him.” She had endorsed Gascon’s opponent, incumbent DA Jackie Lacey.

On January 12, 2021, Schubert wrote a letter informing Gascon that he would no longer have jurisdiction over any cases involving Sacramento County.

Fresno County

Lisa Smittcamp, the District Attorney of Fresno County sent a scathing letter to George Gascon. She said, “Your Special Directives are extreme, and they are already wreaking havoc on crime victims and ignoring their Constitutional rights,” Smittcamp wrote. “Your lack of concern for victim’s rights and public safety is of great concern to all of us who pride ourselves on protecting those very things. Crime has no boundaries, and these Special Directives will certainly impact areas outside of Los Angeles County.” 

“Criminals, like all human beings, need structure, guidance, authority, rules and order to chart a productive path,” Smittcamp wrote. “Your directives encourage a lack of accountability and responsibility for criminal activity. By discounting their responsibility to be productive members of society, you are hurting them too.” 

San Diego County

San Diego District Attorney Summer Stephan said the new special directives were not in the interests of justice, when she revoked her permission to prosecute an accused robber and cop-killer. She revoked permission after learning that Gascon intended to dismiss the enhancements, which would put parole back on the table for the killer. Gascon replied that the killer would still have to serve 70 years before being eligible for parole. Stephan correctly pointed out that this was not true; he would be eligible for elder parole at age 50, in just 20 years. She also pointed out that Gascon banned his deputies from appearing at parole hearings, including in this case. Stephan said, “I can no longer trust that this DA’s policies will abide by the law.”

Orange County

Orange County District Attorney Todd Spitzer appeared on Fox News and criticized Gascon. He warned his constituents about the “experiment” that LA was running. He pointed out that Gascon authored Prop 47 and previously ran San Francisco into the ground. “Los Angeles is out of control.”

On Twitter, he said, “I cannot allow what’s happening in Los Angeles to spill into Orange County.”

Alameda County

Alameda County District Attorney Nancy O’Malley endorsed Nancy Tung in her 2019 bid to unseat Gascon in San Francisco. O’Malley hired Tung after Tung fled Gascon’s office as part of a mass exodus upon his appointment.

Santa Clara County

Santa Clara County District Attorney Jeff Rosen supported Prop 47, which was authored by Gascon. On October 26, 2020, he signed an amicus brief along with Gascon opposing the death penalty. The brief was authored by Erwin Chemerinsky, who also supported Gascon.

San Francisco County

Chesa Boudin succeeded George Gascon as the District Attorney of San Francisco County. He has been a strong supporter of Gascon’s since the beginning. Boudin was described as Gascon’s ideological successor. They founded Prosecutor’s Alliance of California, a criminal justice advocacy group.

Did we miss any? Email us at thomas.themis@mail.com