George Gascon’s History of Racist Remarks

George Gascon was recently elected to be Los Angeles County District Attorney. In part, he won by accusing police of racism and vowing to end it. But a long-overlooked declaration calls into question his sincerity.

Back in 2016, Gascon set out to investigate allegations of racism among police officers in San Francisco. He set up a “Blue Ribbon Panel on Transparency, Accountability, and Fairness.” He had apparently forgotten about his own behavior at a dinner in Massachusetts, but others had not. A retired San Francisco police officer named Gary Delagnes was there. He submitted a declaration, under oath, in which he recounted the evening. The relevant portion is worth quoting in full:

One evening in April 2010, Chief Gascon [and others] had dinner in Cambridge, Massachusetts, where we were attending a Police Union Leadership Forum organized by Harvard Law School. I had the forum organizer invite Chief Gascon to speak to the attendees. During that dinner, Chief Gascon, who was drinking heavily, began reminiscing on his time with the Los Angeles Police Department, including his involvement in the Ramparts Unit scandal. He made multiple statements that disparaged minorities. He became so loud and animated that an African-American patron approached Chief Gascon and asked him to restrain himself because his behavior was offending his family.

You can read the declaration for yourself:

Although Delagnes gave this declaration under oath, Gascon has never denied it under oath. His spokesman said, “What [Delagnes] lacks in credibility, he makes up for in imagination.” The San Francisco Chronicle followed up with Delagnes. He said that “If called as a witness by Gascon’s blue-ribbon panel, I will testify in more detail about those statements.” Unsurprisingly, Gascon’s panel does not appear to have called Delagnes as a witness. Martin O’Halloran, another former police officer, was also present and did not deny the allegations.

Although Gascon’s remarks have been overlooked during the tumultuous period that followed his election in Los Angeles, they raise many troubling questions, not the least about his hypocrisy. Can someone really lead a racial justice movement who is so open about his racial prejudices that he must be asked by a person of color to quiet down? If the allegations are false, why hasn’t Gascon, under oath, told the public what really happened? Is he claiming that the retired officer committed perjury, risking prosecution by Gascon’s office, just to get at him? These formal allegations seem to be serious enough on their own to require more from Gascon than a throw-away line by his spokesman.

Gascon is Hiding His New Hires

Controversial LA County District Attorney George Gascon told voters that he would be transparent. But his record shows a troubling pattern of cover-ups, both large and small. Now, he refusing to tell voters who he has hired or for what job. Critics see his refusal to answer this simple question as evidence that he will not deliver on his promises. Others speculate that he is hiding the recent hiring of several public defenders as prosecutors.

Gascon’s Promises to Be Transparent

Gascon’s campaign website promises “prosecutorial transparency.” His Ballotpedia article claims that he will “enhance transparency and eliminate conflict of interest.” The article uses the word “transparency” no fewer than five times. The Appeal wrote an article called “A New Wave of Prosecutorial Transparency,” complete with a photo of Gascon. NBC News congratulated him for bringing “more transparency to investigations.” The Future Left wrote “Gascon is the reform candidate, who is running on a platform of ending mass incarceration, police accountability, prison alternatives, and transparency.” Gascon even created a Blue Ribbon Panel on Transparency, after a scandal in San Francisco.

Voters thought they could believe him. The ACLU, after his victory, wrote “now that the election is complete, the coalition is focused on promoting greater transparency and accountability.” Here are some examples of voters who though Gascon would be transparent:

Gascon Has Never Been Transparent

Gascon was notorious during the 2020 campaign for refusing to tell the public what is in his LAPD disciplinary records. Prosecutor Michele Hanisee described it this way: “Gascon, who has publicly advocated for transparency in the criminal justice system, apparently draws the line at authorizing the release of his own disciplinary records.”

But his lack of transparency doesn’t just extend to his past misconduct, it also includes misconduct committed by the SFDA. Gascon covered up exculpatory evidence that his crime lab was using questionable methods. He continued to do so until an appeals court ordered him to provide the evidence.

Hanisee also shines a light on Gascon’s attempt to cover up his own crimes.

As District Attorney, Gascón’s attempt to silence whistleblowers in the SFDA’s office did not stop with burying the exculpatory memo that both the author of the memo, and defense attorneys believed should be publicly disclosed. He also attempted to silence investigators at the SFDA’s office who informed federal authorities of Gascón’s apparent violations of federal law. Gascón’s retaliatory actions against that whistleblower cost the City of San Francisco $400,000.

Now Gascon Is Refusing to Say Who He Has Hired

On February 24th, 2021, the union that represents Gascon’s deputies asked for a list of new hires. They asked again on March 3rd and March 4th. They put their request in writing. They waited until March 12, when the union received a letter from Gascon’s lawyers indicating that they would get an answer by March 26th. That day came and went with no answer.

On March 27th, Gascon’s lawyers said that they were “continuing to conduct a thorough search for responsive documents.” They set a new deadline of April 9th, 2021. It is unclear why it has taken over a month to walk over to the personnel office and simply ask for the names.

The union is equally perplexed. They asked the following questions:

  • What does the Administration have to hide?
  • What is the Administration afraid that we will learn? 
  • Would the request be treated differently if it came from a media outlet, or a member of the public?
  • Does the Administration’s resistance to providing this simple information relate to the ongoing absence of an organizational chart from the Office’s website?

To date, they have received no answer, nor has the public, who are nevertheless paying these new secret employees.

Gascon Has Been Hiring Public Defenders

Some of the new hires have been identified in the press. The Metropolitan News-Enterprise reported that Gascon recently hired Alisa Blair, Tiffiny Blacknell, and Shelan Joseph out of the Public Defender’s Office. Each of these lawyers had previously supported Gascon politically. The public defenders were hired without the required competitive examinations and over the heads of other prosecutors.

Gascon Orders His Prosecutors To Go Soft on Defendants For Virtually Any Conceivable Reason

LA District Attorney George Gascon, on his first day, gave his employees several illegal orders. Judge James Chalfant recognized this, and issued a preliminary injunction against Gascon to prevent him from enforcing these orders. Rather than comply with the injunction, Gascon waited two days and issued new illegal orders, then called it compliance. His prosecutors were left feeling vindicated but still in danger of losing their jobs just for complying with the law.

Specifically, Judge Chalfant ruled that prosecutors must plead and prove strikes. They cannot move to dismiss them unless there are “extraordinary circumstances.” This has been the state of the law for decades.

Gascon did not take this lying down. He decided to ignore three strikes despite the judge’s order. Instead of good faith compliance with the judge’s orders, he decided to try an end run around them. So he issued new orders requiring his prosecutors to dismiss strikes for any of eight “factors.” The problem is that dismissal for any one of these reasons is very different from dismissal for “extraordinary circumstances.”

The eight factors are found in The Committee on Revision of the Penal Code’s proposals.

Gascon Wants His Prosecutors to Go Soft Even Though It’s Illegal

Nowhere in the injunction did judge Chalfant say that Gascon could compel his prosecutors to make a motion to dismiss or withdraw prior strikes if “one factor” applies or if the “presumption of dismissal or withdraw” applies.  The opposite is true.  Unless legal grounds apply, as required by section 1385, prosecutors cannot be compelled to bring these motions.  To do so is a violation of the law and ethical rules.

Ordering all LA prosecutors to dismiss based on section 1385 and an individual case review is appropriate and is the law. But qualifying this review “pursuant to the considerations set forth by The Committee” violates the law and the temporary injunction. Even worse is Gascon’s presumption of dismissal if even one factor applies. This is the opposite of “extraordinary circumstances” demanded by the “ends of justice.” It’s unethical and illegal.

The Eight Reasons to Go Soft on Defendants

Even if the order weren’t illegal, it is impossible to follow. The eight factors listed in the report are so vague as to be nonsensical.

For example, factor two says, “The current offense is connected to mental health issues.”  Prosecutors do not know what “connected to mental health issues” means, nor do they have the necessary materials in some cases that may be otherwise privileged or possessed by defense attorneys and not shared with them.  Is “impulse control issues” a mental health issue? What about psychopathy? Are prosecutors required to go soft on psychopaths because they have mental health issues?

Factor four says, “The current offense is connected to prior victimization or childhood trauma.”  Prosecutors do not know what “connected to prior victimization or childhood trauma” actually means, nor they have ever been trained in “childhood trauma.”  And what does this say about the thousands of victims who have experienced horrible trauma and have been victims of countless crimes, yet are law-abiding, productive members of society? 

Factor six says, “Multiple enhancements are alleged in a single case or the total sentence is over 20 years.”  Prosecutors do not know if the “20 years” is with or without allegations and priors.  And what happens if a court has already denied a motion to dismiss?  

Factor eight says, “application of the enhancement would result in disparate racial impact.”  This is controversial to say the least. Prosecutors do not know what that means, and do not know how to make the appropriate comparisons.  They have received no training on this specific topic.  Do they compare cases and defendants in just their current assignment, in other assignments, in other jurisdictions within and outside Los Angeles County, in California as a whole, or even in the entire United States of America?  What if a defendant is of mixed race?  Prosecutors are confused because they are required, on every single case, to treat each as a unique case based on individual facts, circumstances, context, defendant, victim, and prior criminal history (if any).  The race of a defendant and victim, unless specifically relevant to the crime or allegation (e.g., hate crime) is wholly irrelevant to this analysis.

Gascon Reinstates Illegal Orders Two Days After Judge Struck Them Down

On February 8, 2021, Judge James Chalfant granted a preliminary injunction against LADA George Gascon. The order prevented him from banning strike enhancements. The judge ruled that prosecutors had to “plead and prove” them. He also ruled that prosecutors could not move to dismiss them unless it was in the interests of justice. The ruling was a victory for beleaguered line prosecutors who were being forced to choose between obeying the law or obeying their boss.

Most observers expected Gascon to adjust his policies in good faith to comply with the ruling. This is what typically happens after a government agency is hit with an injunction. But Gascon did not attempt to comply in good faith. Just two days after the judge issued his ruling, Gascon issued a new “special directive.”

The Special Directive was not good faith compliance, but rather an attempted end run around the injunction.

Specifically, Judge Chalfant enjoined prosecutors from moving “to dismiss strike priors or any existing sentencing enhancement in a pending case without having legal grounds as required by section 1385.” There is a large body of law discussing these legal grounds.

But the new special directive orders prosecutors to do exactly that.

Motions to dismiss alleged strike priors pursuant to Penal Code section 1385 will be based on individual case review pursuant to the considerations set forth by The Committee on Revision of the Penal Code, hereafter “The Committee.” The presumption will be in favor of dismissal or withdrawal when any one of the factors apply.

This new order is directly contrary to the injunction, contrary to the law, including section 1385, and the case law discussing it. Gascon’s problem is that the law makes it very difficult to dismiss under this section, and he would like it to be very easy. If deputies use their law degrees and follow the law, they would not make this motion except in truly extraordinary and rare situations. But Gascon still wants this motion on every case. So he tried to change the requirements to make it easier.

Instead of following the law, deputies must not review factors set forth by a non-elected committee. None of these factors are law. They have not been deliberated on by the legislature. In fact, the report was issued after the injunction, on February 9th, the day before the new special directive. Prosecutors must bring the motion if any one of the factors apply. Again, this is not the law. The law says the opposite, that motions should only be used in “extraordinary” circumstances.

Ordering all prosecutors to seek a dismissal of prior strikes based on section 1385 and on individual case review is appropriate and is the law.  But, adding the requirement “pursuant to the considerations set forth by The Committee” requirement to those dismissal motions, violates the clear and unambiguous holdings of Romero and its progeny, section 1385, and Judge Chalfant’s order.  Even more illegal is the presumption of dismissal if any one of the factors apply.  This is the opposite of “extraordinary” circumstances when the “ends of justice demand it” requirement under the law. 

Gascon’s end run around the injunction is unlawful and unethical. It is a disappointing example of his desire to change our system by any means, including illegal means or disobedience to court orders.

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.”

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.

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)

Appellate Court Signals Approval of ADDA Lawsuit

The Second District of the California Court of Appeal handed down its decision in People v. Laanui on January 8, 2021, about a week after the ADDA, a union representing Los Angeles prosecutors, sued DA George Gascon. On its face, the case does not appear to be relevant to the lawsuit, but on closer look, the court is clearly signaling approval for the union’s position.

A Parking Lot Murder Led to a Series of Other Crimes

Defendant Elliot Laanui shot victim Edward Emery in a supermarket in Redondo Beach in 1995. There were multiple witnesses and DNA evidence. The DNA was not tested until 2011. It led police to the defendant, who was arrested. Laanui implicated himself during a Perkins operation and communicated with undercover deputies. Somehow, the defendant was released and committed several other crimes, including a shooting and soliciting the murder of an accomplice.

Elliot Laanui

Strikes Were Charged as to Some Counts But Not Others

The information charged a complicated series of crimes and enhancements. There were six total counts. On counts 1, 2, and 3, the information alleged that defendant had suffered serious or violent felony convictions within the meaning of the “Three Strikes” law. These enhancements were not charged as to count 6, solicitation of murder of an accomplice.

Defendant was convicted on all counts. The court used the Three Strikes law to double the sentence on count 6, even though it had not been pled as to count 6. This decision was appealed to the Second District of the California Court of Appeal. This is the same court that would hear an appeal in the ADDA lawsuit.

The Court of Appeal Only Published Its Discussion of Strikes

The first clue of the Court of Appeal’s intentions came from what it chose to write about. The defendant in Laanui raised nine contentions on appeal. The court only published its discussion of the issues related to the filing of strikes.

The Court of Appeal affirmed the trial court and held that it properly doubled the sentence on count 6 under the Three Strikes law. After discussing the parties’ contentions, the Second District got right to the point, the same point at the heart of the ADDA lawsuit:

The purpose of the Three Strikes law is “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious or violent felony offenses.” (§ 667, subd. (b).) By its own terms, it applies “in every case in which a defendant has one or more prior serious or violent felony convictions . . . .” (Id., subd. (f)(1), italics added; see also § 1170.12, subd. (d)(1).)

(People v. Laanui (2021) — Cal.Rptr.3d —, at p. *12.)

By now your ears should have perked up if you are remembering the ADDA lawsuit. After all, the heart of that suit is the contention that prosecutors must file strikes in every case, despite their boss’s order to never file strikes. Here, the Court of Appeal is making a blanket statement that Three Strikes applies in “every case” in which the defendant has a strike prior. By contrast, George Gascon doesn’t want it to apply in any case in Los Angeles.

What the court wrote next seems to apply directly to the ADDA lawsuit.

Indeed, despite the “general rule” that “the selection of criminal charges is a matter subject to prosecutorial discretion,” “the Three Strikes law limits that discretion and requires the prosecutor to plead and prove each prior serious felony conviction.” (People v. Roman (2001) 92 Cal.App.4th 141, 145 (Roman); see § 667, subd. (f)(1) [“The prosecuting attorney shall plead and prove each prior serious or violent felony conviction . . . .”], italics added; see also § 1170.12, subd. (d)(1).) The prosecution may move the court to dismiss the prior conviction allegation for insufficient evidence or “in the furtherance of justice” (§§ 667, subd. (f)(2), 1170.12, subd. (d)(2)), but may not “unilaterally strike” the allegation. (Roman, at p. 145.)

(Laanui, supra, at p. *12.)

This statement could form the holding of a ruling in the ADDA case, it is so directly on point. This statement is also the first principle of law that appears in the published opinion. It was given pride of place despite the fact that the actual issue in contention was directly controlled by different precedent. (See People v. Garcia (1999) 20 Cal.4th 490.) Garcia holds that “it is appropriate to allege [defendant’s prior conviction] status only once as to all current counts.” (Id. at p. 502.)

Why would the Court of Appeal discuss the general applicability of Three Strikes first? Especially when they could have skipped right to Garcia, which controls? And this happened not once, but twice. There is a second controlling case, People v. Morales (2003) 106 Cal.App.4th 445. This case is also factually analogous but was discussed second.

The opinion is littered with points of law that will apply in the ADDA case. The court quotes Penal Code section 667(f), which provides that Three Strikes “shall be applied in every case in which a defendant has a prior felony conviction. (Morales, supra, 106 Cal.App.4th at p. 455.) In fact, the Court of Appeal quotes this language in no fewer than three different sections of the opinion.

But that isn’t all. The court says that “it would be evident […] on the face of the Three Strikes law that the prior strike would apply to all eligible counts, unless the trial court dismissed the strike either on its own motion or in response to a motion by the prosecution or defense.” (Laanui, supra, at p. *15.) Moreover, “the prosecution expressly cannot make a discretionary choice not to pursue the Three Strikes alternative sentencing regime on all eligible counts.” (Id. [internal quotations and punctuation omitted].) But this is exactly what George Gascon wants to do. And it forms the basis for the dispute in the ADDA’s lawsuit.

The Court of Appeal concluded its opinion by describing Three Strikes as “nondiscretionary.” (Id. at p. *17.)

Why Is Really Happening Here?

The Metropolitan News-Enterprise summarized the opinion this way: “the majority opinion […] recite[s] a proposition that Los Angeles County’s new district attorney, George Gascon, is contesting: that a prosecutorial agency is legally obliged to allege all strikes.” The Met News continues:

The two opinions in Laanui, each reciting that the charging of all priors is mandated by statute, come at a time when Gascón is ordering deputies not to allege any strikes. Although the requirements of the Three Strikes Law have been upheld in the past, the opinions add reinforcement to the position of the Association of Deputy District Attorneys (“ADDA”), which has brought a Los Angeles Superior Court action against Gascón to block some of the “special directives” issued by him on Dec. 7, his first day in office, including his prohibition on alleging strikes.

The Laanui opinion was issued just after the ADDA lawsuit was filed. The ADDA lawsuit was discussed extensively in the legal press. And the Laanui opinion itself contains paragraphs of precedent that seem to control the issues in the ADDA lawsuit. This precedent is given pride of place in the opinion, even before cases that control the outcome.

I believe that the Court of Appeal is trying to signal the correct ruling to the ADDA’s judge. The only other option appears to be that Laanui is an incredible coincidence. But it is hard for me to believe that such a relevant and forceful opinion could have been issued by accident.

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

Criminals “Aren’t Worried” About Gascon

Another excellent find by LA Courtfidential on Twitter. Here’s an excerpt from a police report. The officer informs the suspect that they found narcotics. The suspect replies, “Yeah but sales is a cite out now anyways right?” He said, “he knew the new district attorney of Los Angeles was no longer prosecuting most crimes so he stated he “wasn’t worried.”

In other Twitter news, Gascon apparently got mad about his coverage in a local Los Angeles legal paper, the Metropolitan News-Enterprise. He canceled the subscription after 24 years.

Twitter also correctly pointed out that the website looks like it hasn’t been updated since 1996. LA prosecutors reading this news has to wonder about how thin-skinned their new boss is. If he’s willing to cancel a newspaper, what will he do to a deputy that gets him angry?

Gascon ally Mario Trujillo is making news with his Facebook and Instagram posts.

Here’s another problematic one:

Mario’s views seems to be evolving rapidly. Here he is advocating for the death penalty:

LA Prosecutors’ Union Finally Gets Off the Sidelines

The Association of Deputy District Attorneys is a union for deputy district attorneys in Los Angeles. They “strive to advance a work environment that allows our members to focus on their role as the primary guardians of justice in the courts.” Despite that language, the union has remained mostly silent as DA George Gascon has ordered his deputies to violate the Penal Code and ethical rules.

Today, the ADDA sent a letter to county officials, including Gascon, calling his orders in conflict with both the DA’s Office’s and individual prosecutor’s obligations under California law. They said they would request a temporary restraining order.

Gascon’s spokesman declined to comment and referred questions to his lawyer, the LA County Counsel’s Office.

It appears that Gascon is still working closely with Erwin Chemerinsky, the dean of Boalt Hall, UC Berkeley’s law school. NBC4 describes what happened.

Almost simultaneously an unsolicited statement was sent to reporters by the UC Berkeley Law School’s Three Strikes Project that said, “We are confident this attempt to obstruct the will of the voters will be struck down.” The Berkeley statement, quoting law school dean Erwin Chemerinsky and director of the Three Strikes Project Michael Romano, said that DA Association’s action shows it has a “longstanding opposition to reform.”

The union intends to go to court on December 30th. They are seeking “a writ of madate, declaratory relief and injunctive relief” against Gascon and the DA’s office.

Update

The lawsuit has now been filed. You can read the documents here. The LA times published a story about the lawsuit that mostly focused on whether enhancements are good or bad, not whether Gascon’s orders are illegal. At the same time, their editorial board wrote that enhancements were bad. The same board endorsed Gascon a few months ago. Some of the reader’s comments to this piece are insightful.

Gascon wrote a statement commending the court for denying LAADDA’s request for a temporary restraining order.

Gascon Policies Remain Despite Being Told By His Own Appellate Department They Are Illegal

The Metropolitan News-Enterprise has an excellent article discussing the dramatic changes at the Los Angeles County District Attorney’s Office. The most dramatic revelation is that Gascon ignored warnings that his policies were illegal.

District Attorney George Gascón has been told by his office’s Appellate Division that the appeals courts would find no merit in his contention that a judge is obliged to blot out a strike allegation whenever a prosecutor requests it, and has been warned that his effort to thwart the Three-Strikes Law by ordering that no enhancements be sought based on prior strikes could be subject to a challenge in a taxpayer’s action, internal documents show.

The warnings came almost two weeks ago, and no change has been made. The article details two memos, one on December 9 and 10. They set out the requirement that prosecutors file strikes.

By their plain terms, [two Penal Code provisions—§1170.12(d)(1) and §667(f)(1)] require the prosecution to plead and prove all known strike priors.

The memo cites a Jan. 19, 1996 opinion by then-Acting Presiding Justice Norman Epstein of this district’s Div. Four (later presiding justice, now retired) in People v. Kilborn which holds constitutional the limitations on a district attorney’s charging discretion.

Thus, absent a legislative change or intervening case law, the prosecutor must charge all known strikes, […] The district attorney’s office has no legitimate interest in having a policy directly contrary to law.

Gascon responded by declaring the Three Strikes Law unconstitutional. His appellate department, however, made quick work of that. The December 10 memo discusses the law, and concludes, “the prosecutor’s general belief that the Three Strikes law should not be enforced would probably not provide a valid judicial reason to strike a strike.”

This Advice Was Ignored

Notwithstanding that advice, on December 15, Gascon issued an “amendment” to Special Directive 20-08 containing a script for deputies to read.

The script declares that Three Strikes is unconstitutional. The script omits the overwhelming number of cases that are contrary to this position. That led to another memo from the Appellate Department, reminding Gascon that California Rules of Professional Conduct Rule 3.3 “requires attorneys to cite any known, adverse authority.” The script therefore violates ethics rules.

Despite this, Gascon did not change the script. His order to his deputies stands unchanged. This puts them in the unenviable position of choosing between following their boss’s orders or the ethics rules.

LADA Can Be Sued

The memos discuss the consequences of noncompliance with the law. They analyzed several court of appeal cases and conclude, “it is at least plausible that the office would have to defend its policy in a civil case.”

This warning is particularly dire, given the heated criticism LADA has recieved from victim’s rights lawyers. For example, Sam Dordulian has been harshly critical of Gascon’s new policies and is speaking out: