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

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

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

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

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

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

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

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

The Eight Reasons to Go Soft on Defendants

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

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

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

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

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

Gascon Reinstates Illegal Orders Two Days After Judge Struck Them Down

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

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

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

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

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

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

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

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

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

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

Judge Rules Gascon Gave Illegal Orders

LA prosecutors took George Gascon to court and won. Judge James Chalfant ruled against newly-elected LADA George Gascon, issuing a preliminary injunction blocking some of Gascon’s “special directives.”

Chalfant ruled that the Penal Code requires prosecutors to plead an prove “strike” priors. Gascon’s orders not to plead and prove these priors is illegal. He also ruled that prosecutors cannot move to dismiss these priors without legal cause. Gascon’s order to do so, he held, was not legal cause. He held:

The District Attorney’s disregard of the Three Strikes ‘plead and prove’ requirement is unlawful, as is requiring deputy district attorneys to seek dismissal of pending sentencing enhancements without a lawful basis. An injunction against a public official’s unlawful actions cannot, by definition, interfere with the lawful exercise of the official’s duties.

Chalfant Condemned Gascon in the Strongest Terms and Vindicated His Critics

Chalfant used extraordinary language condemning Gascon.

On December 7, 2020, when Gascón assumed the Office, he attempted to uproot the long-standing system of sentencing enhancements, including the Three Strikes law for prior convictions. Legislating by fiat, Respondent Gascón issued a series of special directives that all but repealed California’s sentencing enhancement laws and commanded his employees—Los Angeles County…prosecutors sworn to uphold and enforce the law—to violate numerous statutory mandates and refrain from performing their duties under the law.

Chalfant’s ruling vindicated prosecutors who had spoken out against Gascon. Chalfant said that Gascon had ordered his prosecutors to violate the law, their oaths of office, and their ethical responsibilities.

Portions of the Special Directives prohibit deputy district attorneys from complying with their ministerial prosecutorial duties in violation of the law, their oaths of office, and their ethical responsibilities as officers of the court [….] The unlawful conduct includes barring deputy district attorneys from charging enhancements they statutorily are obligated to charge, barring deputy district attorneys from complying with their ministerial duty to exercise case-by-case discretion to maintain or move to dismiss charges, mandating that deputy district attorneys move to dismiss special circumstance allegations that cannot be dismissed by law, and mandating that deputy district attorneys attempt to unilaterally abandon a prosecution where a judge denied a motion to dismiss [….] Deputy district attorneys risk contempt of court or discipline by the State Bar each time they undertake this conduct.

Gascon Won An Early Victory on Other Sentence Enhancements

Although prosecutors may now file strikes, other sentencing enhancements remain banned in Los Angeles. Judge Chalfant declined to issue a preliminary injunction preventing Gascon from using a blanket policy to disallow the use of these enhancements. The Metropolitan News-Enterprise has this quote from a prosecutor:

As for new filings, it looks like as of now, Gascon can file cases without the special circ allegations, and without the [great bodily injury], gun, gang and other enhancements. This will decrease the number and types of convictions that will qualify as future strike priors.

For example, if a husband batters his wife, he would be guilty of a felony. If he broke her bones, prosecutors used to be able to add three years to the sentence for the infliction of great bodily injury. This is no longer on the table.

Chalfant Trashed Gascon’s Infamous “Script”

After judges began denying Gascon’s motions to dismiss strike priors, Gascon issued an order requiring his prosecutors to claim the Three Strikes Law was unconstitutional. Specifically, prosecutors would have to read from a script which included this claim. The script omitted law that held the opposite of Gascon’s claim: that Three Strikes was constitutional. Prosecutors cannot mislead the court by omitting law. Chalfant agreed that prosecutors could not be put in this ethical bind.

Local Media Coverage Was Heavily Biased Towards Gascon

The Los Angeles Times covered this story under the headline, “Several of D.A. George Gascon’s reforms blocked by L.A. County judge.” The article does not explain how ordering your deputies to break the law and act unethical is a “reform.” They described the ADDA’s position as an “allegation” even though it has now been validated by Judge Chalfant. They reprinted large parts of Gascon’s arguments to the judge, even though they had been rejected by the judge.

Instead of focusing on the illegality of the orders and their unethical requirements, the LA Times described the dispute as “a broader divide between traditionalist and reform-minded prosecutors.” They describe the union as the “old guard of district attorneys.” Their article concludes with a pro-Gascon quote from one of his allies.

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

LA’s local NPR station followed the LA Times in describing Gascon’s illegal orders as “reforms.” Their article is marginally better than the LA Times article, but still contains inaccurate language and allows Gascon the last word.

Reactions From the Union and Its Allies

The victorious ADDA said:

The court ruled as we expected in holding that the District Attorney cannot order his prosecutors to ignore laws that protect the public from repeat offenders. As detailed in our reply brief, the court ruled that the District Attorney’s policy violated the law to benefit criminal defendants and ordered him to comply with the law. This ruling protects the communities which are disproportionately affected by higher crime rates and those who are victimized. […] This decision was based on what the law is and not what an officeholder thinks it should be.

Gascon critic and LA Deputy District Attorney John Hatami said:

Today’s decision is more than a humiliating rebuke of Gascón. It is a reminder that no one is above the law and the law in Los Angeles is not determined by one man, no matter how much of an opportunist, but by the people of the state of California. It is a victory for the community, victims, survivors, and their families and a reminder to all DDA’s that we are required to follow the law, not the demands of the DA or any elected or unelected official. We swore an oath, we must hold to it. Always do the right thing. Always fight for justice for the most vulnerable in our society. Today is a good day, L.A., justice was done.

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

Judge Chalfant’s decision is to be lauded for its great attention to the fine points of the law and his sensitivity to the serious ethical problems created for Deputy DAs by Gascón’s directives. That being said, there is only one ultimate solution to the public safety threat posed by Gascón and that is Gascón’s recall. The website for the recall effort is

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.”


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