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:

Gascon Team Member Gets Sweetheart Deal From Gascon

Gascon’s special assistant Mario Trujillo gave a sweetheart offer to the client of Traci Blackburn, who donated to his campaign. The offer was apparently negotiated by Tiffany Blacknell, who is a Gascon official. Here’s how it happened.

Traci Blackburn was representing a defendant who was accused of committing murder and multiple attempted murders. On December 15, 2020 she appeared downtown in front of Judge Mark Arnold. She had a hearing on the case with Deputy District Attorney Jeffrey Herring. Although the case was eligible for the death penalty, Herring followed Gascon’s controversial directives to move to dismiss the enhancements. If granted, this would change the case from a death penalty case all the way down to a second degree murder.

Family Members Cry as LADA Dismisses the Enhancements

Judge Arnold asked if dismissing the enhancements was in the interest of justice. Herring gave his new boss’s position. The victim’s mother, father, sister, and other family were at the hearing. They spoke to the Judge Arnold, who tried to explain what was happening. “If he’s found guilty and those allegations were true, yes. It would reduce his sentence significantly, a lot.”

Judge Arnold asked, “What do you think about eliminating all of these allegations that Mr. Herring’s office is looking to eliminate?” A family member replied, “I’m sorry, I don’t think it’s fair.” The judge said, “Do you understand what I’m asking you?” Apparently the family member began to cry and the judge came down off the bench to console them.

Judge Arnold asked, “Why are you crying?” The victim said, “I just feel that we need justice and he needs — it’s not fair that he — doesn’t get as much years.” The judge asked “So you don’t want to see these things get dismissed?” She replied, “No.” The victim’s mother said, It’s not fair that they would lower many years. To me it doesn’t seem fair because – because somebody who is doing harm to people, they should pay.”

Judge Arnold denied the motion to dismiss. “I don’t believe that your stated reasons justify dismissal in the interest of justice.” At this point, Ms. Blackburn jumped in but Arnold cut her off, citing the law regarding 1385 dismissals. He also correctly pointed out that the gun enhancements may only be stricken at the time of sentencing. Then Arnold gave Ms. Blackburn a chance to argue, even though she did not make the motion. She said that the DA can charge a case however they want, and the court cannot interfere. This is George Gascon’s position. “If the charging agency says that they want to delete the charges, I think that’s within their purview. For the court to step in and say they won’t do it” is illegal. Judge Arnold replied, “Tell me any case that says that if they move to dismiss an allegation or a charge, that that in and of itself justifies dismissal.” Ms. Blackburn did not have a case and the judge’s ruling stood.

The Conflict of Interest

Judge Arnold asked Mr. Herring, the prosecutor, if he’d like to go over the 28th. Then, to everyone’s surprise, Blackburn, the defense attorney, told the judge that Mr. Herring was off the case. This was after Mr. Herring hade made his appearance, made a motion, and discussed the case with the victims.

Blackburn informed the court that she had reached a deal to settle the case. Apparently, no one was more surprised than the prosecutor, Mr. Herring. Blackburn told the court, “Mr. Herring is not the attorney of record on this case, it was Mr. Trujillo.” She’s referring to Mario Trujillo, an early supporter and member of Gascon’s new administration. The assigned DDA, Mr. Herring, who was present, said, “It’s news to me that I’m not the attorney of record on this case.” The judge was also confused.

Blackburn said that Mario Trujillo had conveyed her a new offer of seven years. DDA Herring said, no, his supervisors were not making an offer. He said, “I’ve also been told from a separate set of supervisors there is no offer, and that’s why we are in a conundrum today.” Apparently Herring and his supervisors intended to try the case, not settle it at a discount. Blackburn told the judge that despite what the DDA said, his office was making an offer. It came from Mario Trujillo.

Tiffany Blacknell, who is mentioned in the transcript, is another attorney in Blackburn’s office. Although Tiffany Blacknell is a public defender, she worked hard to get George Gascon elected and was on his Public Policy Committee as far back as January 2020. She came under fire in August for calling LAPD “barbarians” and an “occupying army.” She has advocated defunding the police and abolishing prisons.

Tiffany Blacknell and George Gascon. Photo Credit: @lwyrchc on Twitter.com

It is not yet known what her role was in this seven year offer. On its face, it appears that she discussed settlement of this case with the DA’s office at the highest level. It’s unclear if she merely delivered the offer to her colleague Blackburn or actively negotiated it. Blacknell appears to be working for Gascon on his policy goals while working against Gascon for the defendant in this case. Obviously, this seems to put her in a precarious ethical position.

Another problem appears in the transcript. If Trujillo and Blacknell negotiated a disposition behind closed doors, they may have violated Marsy’s Law, as it appears that no one consulted the victim’s family. Indeed, a family member appears on the record and seems very upset about what’s going on. Mr. Herring is the only one that complied with the law and he had no idea that Trujillo and Blacknell were negotiating behind his back.

Here’s the complete transcript:

Is This a Sweetheart Offer?

Herring is the assigned prosecutor on this case. He and his supervisors did not make an offer to Blackburn and her client. In the criminal courts, a “no offer” case is a case where the prosecutor seeks the maximum sentence after trial. The maximum penalty for murder and multiple attempted murders is obviously higher than 7 years.

By contrast, Trujillo’s offer is a fraction of the defendants’ exposure at trial. To him, this was clearly not a “no offer” case. Still more puzzling is why Trujillo decided to undercut his own colleagues. And finally, why did Trujillo not tell Herring what he was doing?

Is This a Scandal?

Traci Blackburn’s conduct as a defense attorney is problematic. She donated money to Gascon and then asked him for leniency. To most people, this looks like a conflict of interest. Tiffany Blacknell’s conduct may be even worse. She may have been working for the DA while negotiating against him on behalf of a criminal defendant. It looks like she used her access to DA administration to go over the head of the assigned attorney to get a sweetheart offer. Court watchers immediately suspected Trujillo of giving Blacknell and Blackburn a lower offer than the defendant deserved because they worked to elect his boss.

One thing seems clear: high-ranking Gascon officials should not be representing criminal defendants or giving away plea bargains to their donors.

After the Transcript Leaked, None of the Involved Parties Could Be Found

Bill Melugn at Fox 11 reported on the follow up hearing, which took place on December 28. Judge Arnold ordered that hearing to clear up who was the prosecutor and what was the offer. But no one showed up. Trujillo, Blacknell, and Blackburn simply did not come to court.

A supervisor from Mr. Herring’s gang unit did show up. He told the judge that any offer made by Trujillo is invalid because it never went through him nor the proper channels. Judge Arnold asked whether Trujillo called him to talk about the case. He replied, “not once.” When Judge Arnold was told the deal was invalid, FOX 11 reports that he said, “It’s a good thing…because there’s no way I could look at myself in the mirror with a plea bargain of seven years on this case.”

Attorney Sam Dordulian is representing the family pro bono. “That’s the kind of back door underhanded unethical deal that is just completely inappropriate, and yet it was done on this case, or yet they tried to do it.” said Dordulian.

Notes

Traci Blackburn, the defense lawyer, was formerly the public defender’s training coordinator.

The LA Times published an article with a detailed look at the underlying crime and the December 28th hearing.

Gascon Issues Letter of Support from Criminal Defense Attorneys

LA DA George Gascon published a letter of support today from the LA County Public Defenders Union and other criminal advocates. The letter was not signed by the prosecutor’s union, nor was it signed by any victim’s group or law enforcement group. You can see the full list below.

Gascon’s alliance with these groups is extraordinary, given that they represent criminal defendants, and the DA is sworn to represent the community against criminal defendants. In our adversarial system, the defense bar, including public defenders, typically try to frustrate the district attorney at every turn. Getting their client off, by technicality or advocacy, is their goal. This opposition is based on their role as aggressive advocates from their clients, who have been arrested and charged with crimes. The idea is that aggressive prosecutors advocate the community’s position, while aggressive defenders argue the criminal’s position. Once both sides have had a fair hearing, the judge or jury determines the truth.

In the past, this advocacy has extended out of the courtroom and into the public sphere. For example, the California District Attorney’s Association advocates for “sentencing reform, the death penalty, victims’ rights, body worn cameras, and public safety funding.” Here are some examples from other California prosecutors:

By contrast, advocates for criminals speak out against these measures.

Color of Change signed Gascon’s letter. The CDAA, the OCDA, the SDCDA, and the Amador County DA are not signatories to the letter. Indeed, Gascon’s letter seems to underline the radical difference between his office and others. Specifically, he seems to have lost the support of his own office and gained the support of his professional opponents.

In a tweet, Gascon says “opponents to reform are desperately turning to fear-mongering & scare tactics.” This echoes language in the letter itself, which describes “the open resistance and brazen hostility displayed by some judges, commissioners, and even factions of the DA’s staff who oppose Mr. Gascon’s new directives.”

Here’s the full text.

Notes

Here’s Orange County District Attorney Todd Spitzer on the crisis in Los Angeles.

Here’s LA County Sheriff Alex Villanueva.

Murder Defendants Smirk as Gascon Puts Parole Back on the Table

Five defendants thought that 20-year-old Julian Andrade stole their weed. They beat and stabbed him with a metal chair, a rock, and a glass pipe, leaving a pool of blood on the floor of his home. They dragged his unconscious body in the bed of a truck and drove him up Highway 39 into Angeles National Forest. Andrade began to show signs of life in the back of the pickup truck, so the defendants stomped his head until he stopped moving again. Then they threw him off of a cliff. He fell thirty feet from from the side of the highway. When the defendants heard noises from the bottom of the cliff, they climbed down and stomped on his head more to finish him off. Despite this, detectives believe the victim was still alive when the defendants left him to die. Detectives spent two days trying to locate the corpse. The victim was the father of a nine-month-old boy and was expecting another baby.

The victim.

The five defendants are

  • Andrew Joseph Michael Williams
  • Hercules Dimitrio Balaskas
  • Francisco Amigon
  • Jacob Hunter Elmendorf
  • Matthew Luzon Martin-Capiendo

Prosecutors under Jackie Lacey filed the most aggressive charges allowed by the legislature. This included enhancements for the the use of a deadly weapon, lying in wait, and kidnapping. The purpose of filing these enhancements was to take parole off the table for the two defendants.

While the case was pending, LA elected George Gascon as district attorney. He forbid his prosecutors from using enhancements. He ordered them to dismiss the enhancements in Andrade’s case; not because they were unprovable, but because he thought they were too harsh. He told his prosecutors that there was no case, no matter how severe, where enhancements could be used. The prosecutors in this case followed his orders.

Andrade’s mother Desiree was in court to watch the charges get dismissed. She saw the defendants. They were “smirking from ear to ear” as it happened. She told Fox 11, “It’s sick. This is all sick. I feel let down by the justice system.” She continued, “they brutally murdered my son.” “Every day I miss my son. I wake up thinking of him. I have panic attacks thinking about the pain he went through and that I was not there to help.” She saw “one of the lawyers giving one of them a fist bump on his shoulder, like ‘good job, way to go.’ Really? They thought my son was dead three different times, and yet, they continued to beat my son to death.”

With the enhancements dismissed, the defendants will be eligible for parole in 20 to 30 years.

Andrade’s mother appealed to LA DA George Gascon. “I feel let down by this justice system. I just ask you, George Gascon, to please think what you’re doing. This is not right, this is not fair on so many levels.”

“I don’t ever want to stand here and tell my grandkids, ‘you know what? The law changed and I just sat back and watched.’ Absolutely not. I’m going to fight for him.”

Image from a family vigil for the victim.

Desiree Andrade’s fight led to widespread criticism of Gascon. A prominent Black Lives Matter leader rallied to Gascon’s defense, saying, “don’t let the assholes who are dead set on maintaining an unjust system sway you.”