How to Screw Up a Successful Recall

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

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

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

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

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

Credit: Santa Monica Observer

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

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

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

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

Many Mainstream Candidates Have Expressed Interest In Running to Replace Gascon

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

Credit: LA Magazine

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

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

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

The “Progressive Prosecutor” Movement is Still Alive and Well

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

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

The Scenario

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

Vote Splitting is Real

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

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

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

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

Gascon Wants to Pay for Cop-Killers Funeral

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

According to CBS News:

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

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

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

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

Justin Flores, the Shooter, Had a Long Criminal History

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

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

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

Flores Was Out of Custody Because of Gascon’s Policies

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

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

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

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

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

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

You can read the policy yourself here.

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

Notes

A video about the murders:

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.

Briefing Complete in Union Lawsuits Against Gascon

The First Lawsuit

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

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

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

Alisa Blair. Credit Voyagela.com.

The Second Lawsuit

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

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

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

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

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

Gascon’s Chief of Staff Arrested Drunk at McDonald’s

What Happened

According to the LA Times, Joseph Iniquez has been arrested for being drunk in public. He was in the passenger seat of a car with his fiance Dale Radford shortly before midnight on December 11. They were driving home from a wedding and had stopped in the drive-thru of a McDonald’s. The fiance made an illegal U-turn. Officers approached the car and asked if the fiance was driving drunk. They smelled the odor of alcohol. As teh officers attempted to speak with the fiance, Iniguez inserted himself into the conversation. Iniguez explained that he had been drinking and his fiance was acting as the designated driver. He said that any odor of alcohol is from him. The officer attemped to talk to the drive, Iniguez’s fiance, a second time. Iniguez interrupted again. He was asking question of the officer and began giving his fiance legal advice. The officer told Iniguez that he was not speaking to Iniguez. But Iniguez continued to question the officer about the stop. The officer asked the fiance to step out of the car so that he could separate himself from Iniguez and speak to the driver without interference. Although they did not ask Iniguez to step out, he did anyway.

Once Iniguez was out of the car, he became belligerent and threatening. He called the officer a “fuck-up.”

Iniguez had bloodshot eyes and was slurring his speech. He was “incapable of following simple directions.” He was not wearing shoes. Officers arrested him for public intoxication, a misdemeanor. He was taken to jail and released the following morning. The police released him from jail once he sobered up. Then, Iniguez threatened to put the arresting officer on something called a “Brady List.” Specifically, he called the officer “Brady” and said that he would see him again. The “Brady List” is a list of dishonest police officers. Being on this list prevents an officer from testifying in court. It renders them essentially useless for anything but desk duty. Officers placed on this list are often fired.

They did not present the case to the District Attorney’s Office, which Iniguez helps lead. Any criminal charges would be referred to the Attorney General’s Office due to the conflict of interest.

Iniguez ran for district attorney of Los Angeles County in 2020. He dropped out and joined the campaign of George Gascon. After Gascon won, Iniguez was moved from his low-ranking job as a DDA Grade 2 all the way past Grade 5 and up to Chief Deputy. The Chief Deputy is the second-in-command of the office. Later, he was moved to Chief of Staff, a job he still has today. Gascon’s spokesperson said he was aware of the incident and that “the district attorney has the utmost confidence in Joseph.”

Iniguez and Gascon. Credit: Twitter

Questions

There is video of the incident. Iniquez recorded video on his cell phone. The Tesla driven by his fiance also has a video system. Iniguez has both of these but has not released them to anyone.

Iniguez also oversees the Justice System Integrity Division at LADA. This is the office that prosecutes polices officers.

The arrest raises multiple questions. The first and most obvious question is whether Iniguez has the judgment necessary for his important public role. Although he is much less experienced than most deputy district attorneys in his office, he has some experience with police. He should know not to step into public if he is drunk. He should know that’s a crime. He should also know there is no exception to this law for people who are suspicious of police. Why would he choose to break the law?

The second question raised by this arrest is whether LA DA George Gascon showed good judgment by making this guy his second-in-command. Was it a good idea to take a low-ranking political rival up to the top of the office? Should the Chief Deputy spot be filled on merit or used as a political reward?

Finally, when our political leaders make such bad choices that they end up getting arrested, people might wonder about what other choices they are making on a day to day basis. What other bad choices haven’t we heard about?

Credit: Twitter
Credit: Twitter

Iniguez Sued the Azusa Police Department

Iniguez did not apologize. Instead, he said he has filed an internal affairs complaint against the arresting officer. Iniguez said the officer arrest him “on a whim” and that it was “a traumatic experience.”

Iniguez sued the Azusa Police Department on January 6. He alleged that the officers acted “with evil motive and intent” to violate his civil rights. He complained that the jail intake officer asked about his sexual orientation. He “declined to answer out of fear for his safety.” He complained that the jail was “dark, extremely cold, and isolated.” Also, “the cold was oppressive and injurious.” He was in jail for only four hours.

He claims that the police caused him “emotional and psychological distress. He suffers from sleeplessness and anxiety. He did not identify any physical injuries.

Iniguez is asking the Azusa taxpayer to pay him unspecified compensatory damages, including general and special damages, and punitive damages assigned to the officers involved.

Notes

The arrest report and civil rights complaint are online here. The arrest report lists the location of arrest as a McDonald’s, not a Chick-Fil-A as was originally reported.

The City of Azusa voted no confidence in Gascon on May 18, 2021. Councilman Andrew Mendez said Gascon’s directives create a revolving door for criminals. “If you’re a victim of a violent crime, the last thing you want to hear is that someone who hurt you is back on the streets,” he said.

Azusa PD did a press release:

Credit: Facebook

Azusa’s police union also put out a statement:

It has been made public that Joseph Iniguez was arrested by the Azusa Police Department for violating Penal Code section 647f, public intoxication. This was his only charge. He was booked, processed, and later released, but Iniguez wasn’t happy with that. Iniguez has decided to make a spectacle of his arrest by the Azusa Police Department. The problem is, Mr. Iniguez is refusing to relay ALL of the facts of the incident.

The facts of the case will eventually be released, and when this frivolous and retaliatory complaint is complete, I am most certain the officer will be found to have been in complete compliance with the State law, and Department policy. The officer that arrested Mr. Iniguez did so with full legal authority and without malice.

Mr. Iniguez is attempting to abuse his power as a senior member of the LA County District Attorneys Office, and using it to get him out of trouble. Fortunately for Mr. Iniguez, Azusa PD is currently being led by a Police Chief whom is cowering to Iniguez’ political pressure. The Chief will seek to please Mr. Iniguez and investigate a “by the book” arrest, instead of supporting his officer, who is a seasoned field supervisor, with several awards that he has received throughout his career for being exemplary and brave, including several awards by Mothers Against Drunk Driving (MADD) for his outstanding efforts to reduce DUI collisions in our community.

The Azusa Police Officers Association stands behind the officer that made the arrest, and for doing his job, unlike the department administration.

Mr. Iniguez and his office are quick to blame officers for wrong doing, but they refuse to look in the mirror to put any fault on themselves when they get caught so intoxicated in public they can no longer care for their own safety.

Here is Iniguez’s booking information:

Credit: Twitter, @MelG679

Murder at the Beach

Dockweiler Beach is a beautiful state park in the Santa Monica Bay. Known for bonfires and barbecues, Dockweiler has plenty of parking and is a short drive from the gang-infested neighborhoods of South Central Los Angeles. On March 17, 1995, two couples got into a car and drove there together. They would not all return alive.

That same day, several members of the Limehood Piru Street Bloods were at the beach. Kenji Howard and Edward Powell, and several others had driven down in a car and spent the day causing trouble. According to witnesses, Powell brought a gun he had obtained by trading away cocaine. He shot at several airplanes landing or departing from nearby Los Angeles International Airport.

At 10:00 p.m., when the beach closes, police officers arrived and ordered everyone to leave. While walking back to the cars, someone heard a voice out of Powell’s car say, “give me the strap,” meaning “give me the gun.”

The entrance to the 105 freeway where murders occurred. Credit: Insterstate-guide.com.

Edward Powell drove his car after the car containing the two couples. As the two cars entered the freeway, Powell pulled the car containing the Bloods up next to the car containing the two couples.

The Bloods in Powell’s car flashed gang signs. None of the two couples were gang members. Then someone in the Blood car started shooting at the two couples. Approximately 10 shots were fired. Witnesses described seeing shots from the back passenger seat. That is where Kenji Howard was sitting. Later, Howard admitted to shooting his gun out of the window.

One of the four friends was killed immediately. That was Arkett Mejia, a young woman on leave from the Air Force to attend her parents’ 25th anniversary. Another one of the four friends, Travon Johnson, was also shot. He did not die immediately. He was paralyzed from the neck down and lived for 18 years, until 2013, in a coma. Then he succumbed to his injuries.

One of the two victims: Arkett Mejia. Credit Santa Monica Observer/Facebook

Powell drove Howard back to the gang’s territory. Howard was arrested the next day in possession of the gun. The gun was confiscated, tested, and determined to be the murder weapon. Officers also impounded Powell’s vehicle and noted that the rear windows did not roll down.

Who Shot?

After Howard was arrested with the gun, he was released, probably because he was a minor. Howard was interviewed nine days after he was caught with the gun. He waived his Miranda rights and said that he saw Powell, “firing seven or eight shots.” In other words, he told the police that someone else was the murderer. “Numerous witnesses” said they saw Powell firing the shots.

Police are understandably suspicious of statements like that. Howard’s other statements did not give the detectives much confidence. He said he was sleeping when the shooting occurred, even though it was only 2 minutes by car from the beach parking lot. He falsely claimed that he had bought the gun from Powell the day after the shooting. He was released after the interview on his promise to return the next day. He broke this promise and fled to Seattle. He remained on the run for six weeks until he was captured.

After he was captured in Seattle, Howard interviewed again. Again, he denied being the shooter. He failed a polygraph. He was interrogated for three hours. Then he changed his story. He said that two other men made him shoot the gun. He said he “had not meant to hurt anyone.” He was not paying attention to where he was “capping” the rounds and had just shot out the window. He did not find out until a couple of days later that he had actually killed someone. He gave details about how he shot. He said he wrested his wrist on top of the open window in the door, pointed the gun downward, and fired several shots.

Howard confessed a second time to different investigators. He explained that Powell handed him the gun and threatened to hurt him if he did not shoot at the other car.

Kenji Howard was charged with murder. At trial, Howard retracted his confession and went back to his original story. He said that he was asleep when he was awakened by gunshots. He saw Powell reach over another man and shoot through the open front passenger window. The jury convicted him of firearm possession and hung on the remaining counts. The district attorney chose to retry the case. The second convicted Howard of murder and a grab-bag of other crimes. He was sentenced to life with the possibility of parole in 35 years, plus seven additional years. Howard appealed, but the Court of Appeal affirmed the judgment and sentence.

Kenji Howard on a poster from Change.org

The Forensic Evidence

Investigators found gunshot residue on the front passenger door opposite Powell, who was driving. Howard was in the back passenger seat. GSR was found along the mid-section of the right passenger door along the top of it from from to back. Generally, the GSR was towards the center of the door. There was no GSR on the frame of the right passenger door, outside the car.

The GSR expert discussed Howard’s confession. He said that it was inconsistent with the forensic evidence. If the confession was true, and Howard was holding the gun outside and pointed down, it would not leave gunshot residue inside of the door at all. He did not consider whether the confession might be partially true, whether Howard might have changed the details to minimize his guilt, or any other scenario. He simply said that the portion of Howard’s confession where he described the position of his hands was not true.

Moreover, the shots into the victims’ car were “back to front,” meaning that the shooter’s gun must have been in front of the target car. But this which would seem to rule out Howard firing forward from the back seat through the front passenger window.

The People brought their own firearms expert. This expert disputed the conclusions of the first expert. Instead, he said he could not rule out the rear passenger as the shooter. He also said, however, that the evidence was also consistent with the driver being the shooter.

Lime Hood Piru graffiti. Credit: Unitedgangs.com

How Howard Got His Conviction Overturned

Because he was 16 years old at the time of the crime, Howard was given a “fitness hearing,” to determine if he was fit to be tried in adult court. A judge in juvenile court determined that it was appropriate to try Howard in adult court and transferred him there. He insisted on his trial, which eventually resulted in his conviction.

Powell, an adult, was also convicted of murder as an aider and abetter. Both convictions were either not appealed or upheld on appeal.

Both men went to prison. With no appeals left, both men were out of moves. The only thing they could do was finish their time. But men with access to a law library and time on their hands should not be counted out.

Whether or not this statement is true, it cost Powell nothing. He was already convicted of the crime. The punishment for a shooter and an aider/abetter is the same. In other words, Powell is man with nothing to lose by saying these things. As the court noted, he has not been given anything for his confession. But it has not cost him anything either. And his gang has a lot to gain. Howard could get out.

After Powell confessed, the Court of Appeal granted Howard’s writ of Habeas Corpus and sent it back to the trial court for a retrial. The office that would retry the case was the Los Angeles County District Attorney’s Office led by DA George Gascon.

LADA George Gascon

What Gascon Did

Since Kenji Howard was 16 at the time of the incident, he was returned to juvenile court for another hearing about whether to transfer him back to adult court. When he got there, the assigned prosecutor had been given a script to read into the record. The script was from Chief Deputy Sharon Woo. It said that Howard “was a minor  at the time of this offense. It is the policy of District Attorney George Gascón not to pursue transfer hearings to adult court. Accordingly, this matter will remain in juvenile court.”

Juvenile court supervision ends at 25, but Howard is older, and cannot be supervised there. In other words, he will get out immediately. Sharon Woo allowed him to be released immediately, without considering the merits of the case. But she went farther, and dismissed the case.

“In weighing the evidentiary challenges of proceeding to an adjudication [juvenile court trial] and the reality that no additional penalties can be imposed, the District Attorney’s Office has concluded that its current resource constraints and overarching policy considerations and broad discretion favor dismissal of this matter.

The District Attorney determines how best to represent society’s interest in prosecuting criminal offenses. Here the interest of justice and society’s interest as represented by District Attorney Gascón are best served by allocating the limited resources of the District Attorney’s Office to more critical needs.”

To summarize, the LADA received the case and dismissed it without even consider whether the defendant was guilty.

How LADA Will Make Kenji Howard a Millionaire

Now that charges are dismissed, Howard is asking for a finding of factual innocence. (Pen. Code, 851.8.) Remember, the appellate court only found that the defendant should be retried. It did not exonerate him. After all, he confessed. The LADA would have to oppose this motion. Given their position on the juvenile adjudication, it is clear that they will not use the same resources required for trial to oppose this motion.

LADA will allow the finding of factual innocence. Once this happens, the defendant is entitled to receive $140 a day from the California Victim Compensation Board. (Gov’t. Code, 4904.) This would result in an award of $1.2 million dollars to Howard that would otherwise go to other victims, like the families of Arkett and Travon.

This finding would also allow Howard to sue the state. This would result in legal fees paid by taxpayers. And of course, any recovery will be paid by taxpayers. Ironically, the victims’ families can’t get any of this money from Howard because the statute of limitations has run on their suits.

What Should Have Happened

Kenji Howard should be retried as an adult. First, it is appropriate to try him as an adult because the crime he confessed to, murder, is not ethically complex. Five-year-olds know that murder is wrong. Certainly, Kenji Howard knew that going to the beach with a bunch of gang members, shooting at airplanes, getting into a fight, and shooting into an occupied vehicle were wrong. It would be farce to claim that his “developing brain” prevented him from seeing this, or that it rendered him unable to resist the urge to murder people. The first judge was correct: this case belongs in adult court.

Second, Howard should be retried. This case is not black and white. The concerns raised by the appellate court, particularly those about the GSR evidence, are real. A jury should hear them and make a decision. Powell’s confession should be tested on cross-examination, which it hasn’t. The GSR experts should each testify to the jury, and the jury should decide which is more credible. All the other witnesses should testify as well. 1.2 million dollars is enough to pay the annual salary of 15 teachers. That’s an entire school. You and your neighbors should not give this money to a confessed killer unless there is a jury determination that he is not guilty.

Notes

I heard about this by reading an excellent article by Kathleen Cady for the Los Angeles Association of Deputy District Attorneys. It was also published in the Antelope Valley Times.

The Superior Court Criminal Memorandum of Decision on Howard’s Petition for Habeas Corpus.

Full version of the poster shown above, created by Mary Sutton.

An interview with a 17-year-old Lime Stree gang member.

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.

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.