Gascon Tells Murder Victim’s Family That They Are “Uneducated” and Should “Shut Up.”

Here’s the video:

Gascon was speaking outside the Pomona Courthouse when he was interrupted by protesting crime victims. One family insulted by Gascon was the family of Joshua Rodriguez, who was kidnapped, tortured, and murdered in 2015. His mother wrote:

I am his mother and Joshua lives inside my heart and everyone else who knew him will say the same. He will not ever be forgotten . His smile alone is so bright it shines even now at such a dark time. Just to think of The laughter that comes with it makes me cry now. […] The shock of my son being murdered was so unreal. I still find myself somewhat in denial to this day that he is gone. 

She was upset about Gascon’s new policies. Specifically, Gascon directed his prosecutors to lighten the charges against her son’s killers. She went to the courthouse to protest, which led Gascon to remark, “”It’s unfortunate that some people do not have enough education to keep their mouth shut so we can talk.” Rodriguez’s mother shouted “don’t do this, I’m begging you!” as Gascon walked away, ignoring her. His mother said, “My son can never speak again because he was murdered. He was kidnapped, tortured, and murdered. My son matters.”

After video of the exchange appeared on social media, Gascon put out the following statement:

“While speaking to colleagues outside of the office there were individuals yelling on opposite sides of the crowd. I did not understand what they were yelling about until later, let alone that they were victims. Regardless, it’s not how I should have reacted. Clearly this family is in pain, and I will be contacting them to speak directly and hear them out. The defendants in this case are all facing life in prison.”

The victim’s mother can clearly be heard yelling about her son. Other victims are also protesting about their loved ones. This seems to contradict Gascon’s press release, where he says that he didn’t understand that they were victims. Gascon did not explain why he walked away instead of immediately apologizing.

Here’s a List of Some of the Enhancements LADA Is Not Using Anymore

The following enhancements were explicitly banned.

  • Prior strike enhancements. (Pen. Code §§ 667(d), 667(e), 1170.12(a), 1170.12(c).
  • Five year year priors. (Pen. Code § 667(a)(1).)
  • Gang enhancements. (Pen. Code § 186.22 et seq.)
  • Special circumstances allegations. (Pen. Code § 187.)
  • Bail violations or violations of release on your own recognizance. (Pen. Code § 12022.1.)
  • Firearm allegations. (Pen. Code § 12022.53.)

Newly-elected DA George Gascon’s first order banned the use of all enhancements, period. Although not specifically enumerated, this ban also includes the following notable enhancements.

  • Sales of controlled substances within 1,000 feet of schoolyard. (Health & Safety Code § 11353.6.)
  • Trafficking in controlled substances within drug treatment centers, detox facilities, or homeless shelters. (Health & Safety Code § 11380.7.)
  •  Money laundering. (Penal Code § 186.10.)
  • Recruiting another person to participate in street gang; additional punishment for recruiting minor. (Penal Code § 186.26.)
  • Fleeing scene after committing vehicular manslaughter. (Penal Code § 192.5.)
  • Child abuse in form of female genital mutilation. (Penal Code § 273.4.)
  • Use of deadly or dangerous weapons, or armed with firearm during specified offenses. (Penal Code § 12022.)
  • Use of firearm or dangerous or deadly weapon during sex offense; or armed with firearm or dangerous or deadly weapon during sex offense. (Penal Code § 12022.3(a)–(b).)
  • Use of firearm, assault weapon, or machine gun during felony. (Penal Code § 12022.5.)

Here’s a list of enhancements that the new DA initially ordered his deputies not to use, but changed his mind after a two weeks of criticism.

  • Hate crime allegations. (Pen. Code §§ 422.7, 422.75.)
  • Elder and dependent adult abuse allegations. (Pen. Code § 667.9, 368(b)(2)/12022.7(c).)
  • Child physical abuse allegations. (Pen. Code § 12022.7(d), 12022.9, and 12022.95.)
  • Child sexual abuse allegations. (Pen. Code § 667.61, 667.8(b), 667.9, 667.10 ,667.15, 674, 675, 12022.7(d), 12022.8(b), and 12022.85(b)(2).)
  • Human sex trafficking allegations. (Pen. Code § 236.4(b) and 236.4(c).)
  • Financial crime allegations. (Pen. Code § 186.11.)

You can read the amended orders here:

Gascon Blacklists Judges

Newly-elected LA DA George Gascon has caused a firestorm with his orders to ignore conduct enhancements in Los Angeles County. This policy leads to the early release for those who commit the most egregious crimes against the most vulnerable victims. The prosecutors that have to carry out these orders are understandably unhappy about it, especially since compliance with the orders are illegal in some situations. Instead of listening to his prosecutors, Gascon asked the defense bar to report them to him, so that he could discipline them. This DA blacklist has only made the crisis worse. Now, Gascon wants to extend the blacklist to judges that won’t go along.

On December 15, Gascon issued a new special directive to his prosecutors. If a judge refuses to allow the prosecutor to dismiss all the enhancements the prosecutor must report the judge to her head deputy. Why? The case of judge Shellie Samuels explains things. Prosecutors had filed a case against four defendants that included enhancements. The prosecutor, in compliance with Gascon’s policy, moved the court to dismiss the enhancements. The court conducted the analysis required by the Penal Code and found that it was not met. She refused to dismiss the enhancements. Someone reported Judge Samuels to Gascon. He responded by “blanket papering” the judge. This is a criminal procedure where the DA can prevent any criminal case from going to a judge. It effectively removes them from the criminal courts. Two days after she was blanket papered, judge Samuels recanted and began to go along.

This blacklist promoted a firestorm on the bench. No fewer than five judges are quoted in opposition by the Met News. The controversy even reached the California Supreme Court. Chief Justice Tani Cantil-Sakaueye said, “it appears these issues are pending before the Los Angeles Superior Court and may eventually come before this court.”

Responsible district attorneys don’t issue illegal orders to their own employees. They don’t blacklist their own prosecutors for principled non-compliance. They don’t ask the defense bar to report prosecutors for internal discipline. Many hoped that Gascon’s bad behavior would be limited to his own employees. Sadly, he has extended his bullying to the bench. Will it stop there?

Gascon Tried To Stop Prosecuting Hate Crimes

Los Angeles City Councilman Paul Koretz is shining a light on one of the most troubling new developments at the LA DA’s office. Newly-elected district attorney George Gascon eliminated special enhancements for hate crimes on his first day in office. Koretz pointed out that hate crimes of all kinds have increased significantly over recent years across the United States in general and in Los Angeles in particular. After two weeks of outcry, Gascon was forced to reverse himself.

Hate Crimes Are Up

According to the Los Angeles County Commission on Human Relations, violent hate crimes grew roughly 65%, to the highest rate reported since 2008. Black people remain the largest group of victims. Even though they are 9% of the population of LA County, they are 47% of racial hate crime victims. White supremacist crime jumped 38%. Black people are also overrepresented as victims of sexual orientation and anti-transgender crimes. 93% percent of gender-motivated crimes were of a violent nature, followed by sexual orientation (79%), race (75%), and religion (32%). Anti-transgender crimes rose 64% to the largest number ever reported.

Los Angeles is experiencing an increase in hate crimes at a time when California is seeing the opposite. The California State Attorney General reported that the number of hate crime events throughout
the state decreased 4.8% from 1,066 in 2018 to 1,015 in 2019. Interestingly, the number of hate crime victims in California grew 0.8% percent from 1,237 to 1,247.

Despite these troubling numbers, officials believe the true number of hate crimes is even higher. The US Justice Department reported in 2017 that more than half of all hate-motivated incidents, including hate crimes, were not reported to law enforcement.

The District Attorney Could Do Something About It

The law gives prosecutors the ability to enhance the punishment for those who commit hate crimes. After all, assaulting someone because of their race is worse than simply assaulting them. That’s why the legislature passed Penal Code section 422.75 “Enhanced penalties for hate crimes.” This law was passed to fight bigotry and support civil rights. It was based on a model bill drafted by the Anti-Defamation League, an international Jewish organization dedicating to fighting antisemitism and other forms of hate. Professor Susan Gellman discussed the problem in 1991, when section 422.75 was passed.

Without question, bigotry-motivated crime, like all bigoted action and expression, causes real and serious harm to its direct victims, to other members of the victims’ groups, to members of other minority groups, and to society as a whole. Whatever policy and constitutional problems ethnic intimidation statutes may have, these statutes are the reflection of legislatures’ recognition that these harms are real and significant.

Susan Gellman, Sticks and Stones Can Put You in Jail, but Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws (1991) 39 UCLA L. Rev. 333, 340

Gellman concludes with this eloquent appeal for the criminal justice to do something. When the criminal justice system “treat[s] racist attacks as pranks, their actions may be viewed by members of disempowered groups as government tolerance or even approval.”

Penal Code section 422.75 is a powerful tool. If a person is convicted of a felony that is also proven to be a hate crime, he will receive and additional prison sentence of one, two or three years. If the hate crime was done in concert with another person, the punishment is an additional two, three, or four years in state prison. For example, if two men beat up a transgender woman, both men could face felony assault charges carrying a maximum sentence of four years. If the assault is proven to be a hate crime, the maximum sentence jumps to eight years. That additional time sends a strong message: hate crimes are not tolerated in Los Angeles. Or at least they weren’t, until now.

Gascon Is Choosing Not to Fight For Hate Crime Victims

The DA is charged with enforcing these laws. The Commission notes, “the District Attorney’s Office handles the great majority of hate crime prosecutions in Los Angeles County.” Before Gascon got to work, his office filed charges in 94% of the hate crimes brought to them by police. That’s 64 defendants. “Of those, 60 adult defendants and four juveniles were charged with hate crime enhancements.” In other words, the vast majority got the additional time they deserved. Under Gascon’s new orders, that number would fall to zero.

That is astonishing. Councilman Paul Koretz is right to speak out. The LA DA went from aggressively protecting the rights of hate crime victims to doing nothing overnight.

Notes

For an excellent overview of the history and development of hate crime laws, see 39 UCLA L. Rev. 333 (1991-1992) Sticks and Stones Can Put You in Jail, but Can Words Increase Your Sentence – Constitutional and Policy Dilemmas of Ethnic Intimidation Laws.

Update

On December 18, Gascon reversed himself and allowed the filing of the hate crimes enhancement. This is the second area he had been forced to retreat since his special directives were issued.

The Los Angeles Police Protective League issues the following statement:

“George Gascon is providing a MasterClass on the dangers of a politician running the D.A.’s office instead of an experienced prosecutor. It took a national outcry for him to understand that child rapists, human traffickers and perpetrators of violent hate crimes should spend some more time behind bars. Yet he’s still willing to go easy on gang members who terrorize our neighborhoods or criminals that shoot cops in the back of the head. He still doesn’t get that crime victims need an authentic voice for justice, not a politician that says one thing and does another — we have enough of those.”

Gascon: Opposition Has a “Financial Interest” in Mass Incarceration

There’s another article this morning about the problems created by newly elected LA DA George Gascon. In it, Gascon says criticism is “not surprising to me” because “people have benefited from a system that has been impacting communities in so many negative ways without necessarily producing good results because they had a monetary interest. I know there are people in the criminal justice system across the board both in the private and public sectors that have greatly benefited from mass incarceration…”

It’s not clear to me who he’s talking about. But the resistance to Gascon’s orders is being led by line prosecutors. They are the regular people that try cases in Los Angeles County. Deputy District Attorneys have no financial interest in mass incarceration. They do not get a bonus for every conviction they obtain. They are not evaluated for promotion on the number of convictions they obtain. Nor do they benefit from trial convictions. They don’t get money or promotions from long sentences over short sentences. They are promoted (or not) because of their knowledge of the law and their skill at trial presentation. If there were zero state prisoners, they would get the exact same paycheck.

Maybe Gascon’s not to blame. Maybe he just doesn’t know these facts. In that case, he’s off the hook for his appalling remarks. But he’s not off the hook for his appalling ignorance of the office he’s supposed to lead. After all, he should know how his employees are paid.

On the other hand, maybe Gascon does know that his prosecutors have no “financial interest” in mass incarceration. In that case, saying something you know is not true is called lying. Obviously, it’s wrong to lie, particularly when you’re an elected official and you’re lying to the public about your own employees to persuade people that your employees are acting in bad faith. There are layers and layers of bad conduct there. If Gascon knows that his prosecutors have no “financial interest” in mass incarceration, why tell people that they do? To undermine their argument? To silence them? Or, as I said, the most obvious conclusion, to persuade the public that his own employees are arguing in bad faith?

Gascon to Judges: Go Along or Get Out

Los Angeles judges just got dragged in to the conflict between George Gascon’s policies and the Penal Code. Gascon already has his hands full compelling his own prosecutors to follow orders to dismiss all enhancements. These orders are unwise at best and illegal at worst. Meanwhile, independently elected judges are refusing to go along. Their permission is required and they are not giving it. Today, Gascon began threatening them too.

Gascon is Forcing Prosecutors to Move to Dismiss Enhancements

In a dramatic move, Gascon banned the use of enhancements on his first day in office. Enhancements lengthen prison terms for particularly bad conduct. They also lengthen the terms of people with bad records. Gascon claims that these laws are racist and drive mass incarceration. The legislature claims these laws make the punishment fit the crime and take dangerous criminals off the street.

Crime victims and prosecutors are generally in favor of the use of enhancements. Prosecutors are also aware that the California Constitution and the Penal Code require the use of enhancements in certain circumstances. There were rumors of widespread opposition to Gascon’s ban on the filing of enhancements. The opposition correctly pointed out that Gascon was ordered prosecutors to violate the law. Instead of backing down, Gascon doubled down, and began threatening to fire those prosecutors who continued following the law. As their supervisor, Gascon has a lot of leverage of prosecutors. Threatening to fire someone is an effective way to compel them to do things. Gascon can intimidate his employees in other ways. He can give them “freeway therapy,” by assigning them to a courthouse across the county from their home. He can prevent them from obtaining plum assignments. He can move them to difficult or boring assignments.

Gascon seems to be using each one of these tools to force compliance with his orders. And it seems to be working. Most prosecutors are going along. But there has been resistance from the bench.

Gascon Needs the Judges’ Permission to Dismiss Enhancements

The law clearly provides that a prosecutor may not dismiss an enhancement herself. She must move the judge to do it. The judge, in turn, must make a finding that it is in the interests of justice. The findings required may be even more complicated for a “strike” offense. Prosecutors have been reluctantly moving to dismiss enhancements pursuant to Gascon’s instructions. They are doing this to avoid being fired, even though many believe that such dismissals are both unjust and illegal.

But judges haven’t been going along. They have been denying the motion. Many believe the judges are on solid legal ground. Today, Gascon’s administration responded to the judges.

Gascon Threatens the Judges

Each party in a criminal matter may refuse to have their case appear in front of a judge. (Pen. Code section 170.6.) This is called “papering” a judge. The email above is an order to paper Judge Shellie Samuels for refusing to dismiss enhancements. At first blush, this doesn’t appear to be that big of a deal. After all, Judge Samuels probably has hundreds of cases on her docket. But consider this: the District Attorney’s Office is a party to every criminal case. That means they are a party to every single case on Judge Samuels’ docket. If the District Attorney papers Judge Samuels on every case, Judge Samuels will have no criminal cases at all. That is what Joseph Iniguez is ordering. He specifically says that no other cases should be assigned to her. He is ordering his prosecutors to use Penal Code section 170.6 to take Samuels entire criminal docket away.

Once these orders are carried out, and Judge Samuels’ docket is gone, she is useless as a criminal judge. She can’t be fired, because she is herself an elected official. The only place she is useful is Civil Court and Traffic Court. That’s where she will be moved.

Gascon and Iniguez clearly want to make an example of Samuels. No judge wants to lose their case load, be moved out of their courthouse, and forced to preside over civil or traffic cases. Some judges have never even practiced in these areas of law. In fact, most criminal judges are either former public defenders or former district attorneys. Most of them have no idea what goes on in civil court and shouldn’t be there. That’s the threat that Gascon is using.

The tactic worked. On December 17, Bill Melugin from FOX LA reported that Gascon will no longer be papering Judge Samuels because “she has subsequently started dismissing enhancements in accordance with his new policies.”

Why Is This a Big Deal?

Issuing an order to your employees to violate the law is a big deal. That’s what Gascon did when he ordered prosecutors not to file strike enhancements. Then threatening to fire them if they did not comply was an even bigger deal. Break the law or lose your job is a choice that no one should have to make. Still, the judiciary is an independent branch of government that is supposed to check the executive branch in these situations. So threatening the judicial branch is not only immoral but threatens our separation of powers. Those who think Gascon is a reformer should stop and ask themselves why he has to break the law threaten virtually every other person in the criminal justice system in order to accomplish his goals. Has he gone to far? Just ask Judge Shellie Samuels.

Gascon Walks Back the First of His Day One Orders

George Gascon began his term as DA last week and issued several controversial orders on his first day. Many of these orders appear to be at worst illegal and at best unwise. The most controversial was his order not to use the Three Strikes Law, even though the California Constitution and Penal Code require us to do so. That order remains in place.

But cracks are beginning to appear in the barrage of day one orders. Specifically, Gascon’s Special Directive 20-06 has just been walked back and qualified. This order directed prosecutors from requesting bail for any misdemeanor or felony, with the limited exception that we make seek bail on strikes offenses. In other words, bail is pretty much dead in LA.

This order didn’t last long, mostly because the people that wrote it don’t understand how criminal justice works. They forgot about arrest warrants. An arrest warrant is a complaint that is approved by a judge, and allows someone to be arrested for a crime. When they are arrested, they are held on bail and brought to court to face their charges.

The problem is, if you are not using bail, you can’t use arrest warrants. The courts will not issue arrest warrants without a bail amount. That’s because the arresting officer would have to immediately release the arrestee. This defeats the purpose of the warrant. “I’m arresting you!” would be followed immediately by “I’m releasing you!” and nobody would go to court.

Once this problem was brought to the new administration, the Interim Chief Deputy Joseph Iniguez sprang into action. You may have heard of Iniguez. He supported Gascon and contributed to his campaign. In return, he was made #2 at the office, even though he has virtually no experience. He has only prosecuted four felony trials, compared to hundreds by other deputies.

Iniguez partially reversed the earlier special directive. He reinstated bail for arrest warrants at $1. This will almost certainly not be enough for officers to retain custody of the arrestee. Many are predicting that bail will be back in full for arrest warrants. This may be the first of many corrections to day one policies opposed by prosecutors.

Can George Gascon Just Not File Strikes?

One of the most controversial policies implemented by newly-elected district attorney George Gascon is a directive to not file enhancements under the Three Strikes Law. You might remember this law: it provides that when a person is convicted of a third serious or violent felony they are “out,” meaning sentenced to 25 years to life.

Three Strikes has other provisions you may not have heard of as well. If you have been convicted of one strike, any subsequent felony conviction’s punishment is doubled. Strikes also keep people in prison for more of their term. With a strike the good behavior credit you get in prison is limited to 20% of your sentence. Without a strike, you could get much more, up to 75% credit. In other words, if you are sentenced to 10 years, you could get out in 2.5 years if you don’t have a strike. But you serve 8 years if you do.

The Directive: Don’t Plead and Prove Strikes

Three Strikes is an “enhancement.” It must be plead in the complaint. In other words, you must write down in the complaint that a defendant was previously convicted of these strikes on these dates and is thus in even more trouble. Then, before conviction, you have to actually prove this happened. You can use RAP sheets and prison documents and other things. Gascon has ordered his deputies to stop pleading these enhancements. In other words, if you find out that someone has a previous strike, you should just ignore it.

The Constitution: Plead and Prove Strikes

Here’s the problem. Article I of the California Constitution, at section 28(f)(4), says this:

 Use of Prior Convictions. Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.

Cal. Const. Art. I, Section 28(f)(4).

You shall use strikes without limitation. “Shall” in the legal context means “must,” as in “no option.” There is no exception to this provision in the California constitution. It tells prosecutors: you must do this.

The Penal Code: Plead and Prove Strikes

The Penal Code has similar provisions.

Notwithstanding any other law, [Three Strikes] shall be applied in every case in which a defendant has one or more prior serious or violent felony convictions as defined in subdivision (d). The prosecuting attorney shall plead and prove each prior serious or violent felony conviction…

(Pen. Code section 667(f)(1).)

Because it’s the Penal Code, they put the exact same thing in another place, just for good measure.

Notwithstanding any other provision of law, this section shall be applied in every case in which a defendant has one or more prior serious and/or violent felony convictions as defined in this section.  The prosecuting attorney shall plead and prove each prior serious and/or violent felony conviction…

(Pen. Code section 1170.12.)

Notice that “shall” pops back up in here. There’s one important difference between these laws and the California constitution. Prosecutors may ask the court to dismiss the strikes once they are plead, if it is “in the furtherance of justice.” But it’s up to the court, meaning the judge, to decide whether to do this. It’s not up to the prosecutor. It doesn’t just happen automatically. The judge has to agree that it is “in the furtherance of justice.”

Follow Orders and Be Disbarred or Follow the Law and Get Fired

This is a big deal because the new DA is ordering his deputies to violate the California Constitution. That puts them in a tough spot. They could choose to follow orders and not file strikes. But that has consequences. First and foremost, prosecutors don’t want to break the law. In fact, that’s the exact opposite of thing they signed up for. Even if you leave out the important principles at issue here, there are still pitfalls. Following orders puts them at risk of a bar complaint. This has happened already to the Head Deputy in Antelope Valley. Just imagine that your family member was shot but lived. Imagine the shooter had two strikes. The shooter was facing 25-life, or more, under the previous administration. Now, without the strikes, they are facing five years served at 50% – just 30 months prison. You can’t even get a law degree in 30 months. Victims are – and should be – upset about this. Deputies who follow orders have to face these victims on virtually every case.

Now imagine that you don’t follow orders. The constitution trumps an office directive, after all. You’ve read up on things, and you’re trying to do the right thing. Well, you are going to get put on a list. The defense bar is keeping a list of prosecutors that don’t go along. They are providing that list to the new DA. If you find yourself on that list, you can be disciplined or even fired for insubordination. Rumor is that your boss will be fired to for failing to control you.

Gascon has put prosecutors between a rock and a hard place. Follow his orders and be disbarred, or follow the law and be fired.

CDAA Letter

On January 12, 2021, the California District Attorney’s Association published an open letter discussing this issue. You can read it here:

The letter focuses more on the wisdom of the “no enhancements” policy, rather than its legality, but it is still worth reading.

Update

A Superior Court Judge ruled that Gascon must file strikes. He issued a new policy to that effect.

Public Defenders Blacklist LA Prosecutors

George Gascon recently replaced Jackie Lacey and brought dramatic policy changes with him. One of the most controversial is that Gascon ordered his prosecutors not to file any sentence enhancements for any reason.

The most famous sentence enhancement is the Three Strikes Law. Gascon has been clear from the beginning of his term that this law will not be used. His orders are to dismiss the enhancement from any pending case in which it applies.

Many prosecutors are reluctant to follow this order because they believe it is illegal. Whether they are justified is an important question. But the more salacious issue is how the defense bar has inserted itself into this dispute.

The public defender, alternate public defender and other criminal defense lawyers are keeping lists of prosecutors who refuse to dismiss strikes. The rumor goes on. The defense bar will provide these lists to Gascon and his administration so that these prosecutors, and their supervisors, can be fired. The prosecutors will be fired for insubordination. The supervisors will be fired for failing to control their employees. The rumored purpose of these firings is to create job openings that can be filled with prosecutors who believe in Gascon’s changes.

Shame on the defense bar for acting this way. They should not be creating blacklists. They should not inject themselves into disputes in someone else’s office over internal policies. One lawyer should not try to get another lawyer fired over a legal disagreement.

Criminal court has been different than civil court, an environment that is notoriously uncivil. Every little transaction between civil litigators is fraught with aggression, lack of mutual trust, an unprofessionalism. As a result, civil litigators waste their clients time and money with pointless bickering and posturing. By contrast, criminal lawyers, especially public defenders and prosecutors, often work together day after day in the courtroom. They know each other. Importantly, they have a chance to build trust with each other. That can lead to real communication, not the pointless bickering we find in the civil system. It helps the system work in a just way.

What the public defenders are doing now will break the trust and civility that used to exist in Los Angeles. An entire office is engaged in a coordinated campaign to get portions of the other office fired.