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.

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.

Irony and the Death of Jeff Adachi

Jeff Adachi, the elected public defender of San Francisco, advocated ending the war on drugs. Now he’s dead from a drug overdose.

Adachi should be lauded for his career in public service. His death also raises important questions about drug crime. Adachi was in possession of cocaine and under its influence on the day of his death. Someone sold or furnished the drug to him. These are all against the law.  Unfortunately, people have decided that drug laws are not worth enforcing in the same way that they used to.  Police used to spend a lot of time and effort trying to detect and prevent these types of crimes. Adachi describes this time as “the bad old days.”

Things are different now. Drugs crimes have been reduced to misdemeanors, or in some cases infractions. As a result, police no longer prioritize these crimes, and allocate their resources elsewhere. Adachi himself points out:

[San Francisco]’s felony drug arrests are plummeting at unprecedented speed — 92 percent since the peak in 1988-89, and despite our population growing by 150,000. 

Jeff Adachi was in favor of these changes. He said, “The war on drugs ruined countless lives.” He described it as biased, devastating and misery-inducing. He continued, “We applaud anything resembling a ceasefire in this calamitous war.”

The irony is that Adachi helped to end the exact kind of police work that could have saved his life. He described police work aimed at drug users as “the war on crumbs.” He said that in February, when he was probably a drug user himself. If law enforcement had managed to stop that cocaine from entering the United States, or California, or even just San Francisco, then Adachi would be alive today. Once the cocaine got into the city, if a policeman had managed to find it, Adachi would be alive today. To be even more specific, if a policemen had stopped Adachi, frisked him, and discovered his drugs on the night of his death, he would be alive today. It’s an uncomfortable reminder to opponents of stop and frisk that drug enforcement can save lives.

You might say that law enforcement failed to do its job. Law enforcement should have stopped the transportation of the cocaine, should have been out there stopping and frisking people, should have assigned officers to drug interdiction. But Adachi himself worked to prevent that. He described efforts that could have saved his life in the most derogatory way possible. And he went to court, and the court of public opinion, again and again to obstruct drug enforcement. In retrospect, he should not have done that.

His death, then, is a reminder of the consequences of drug crime. In Adachi’s case, the consequences were fatal. He died on a gurney in a corner of a hospital ER. And although he was only one man, his death is dramatic evidence that his ideas on drugs were wrong. His death was a private tragedy for his family. But he was a public figure. And the public can learn an important lesson from Jeff Adachi’s ironic (and unnecessary) death.

Miscellany

Local news outlet Mission Local blames Adachi’s death on failure to treat his heart problems. Incredibly, they call this “the painful lesson” to be learned from his death.

Adachi wanted his misdemeanor attorneys to conduct 10 trials a year.

Information about Adachi’s death came to light when a reporter obtained the police report. Many were angered and embarrassed by this. The publication of the details of Adachi’s death has become a saga of its own.

Public Defenders Play the Race Card

I just finished an article on Slate with the headline “When Race Tips the Scales in Plea Bargaining.”  It discusses a study out of Loyola Law school that

analyzed 30,807 misdemeanor cases in Wisconsin over a seven-year period and found that white people facing misdemeanor charges were more than 74 percent more likely than black people to have all charges carrying potential prison time dropped, dismissed, or reduced. And white people with no criminal history were substantially more likely to have charges reduced than black people who had no criminal history.

The authors did not consider the obvious: that relative poverty might cause this outcome.  In California, people of color are less wealthy.  If you wealthy, you are more likely to afford a lawyer who can negotiate these benefits.  They wealthy can bail themselves out and fight the case, eventually securing a better deal.  If people of color tend to be less wealthy, they may be unable to afford to fight as hard, and thus may get a worse deal.  There may be other explanations. Do the two groups commit the same crimes at the same rates? Consider a hypothetical: one group commits only driving without a license misdemeanors, while the other commits only domestic violence misdemeanors. You would not expect similar jail commitment rates for these two groups. The authors don’t consider whether different patterns of offending account for the different outcomes. The authors don’t consider geographical differences. Is the law more lenient in the suburbs than urban centers? In the south than the north? The list of alternate explanations could go on and on.

But the authors, without an explanation, go right to “prosecutors are racist” as an explanation.  That’s lazy, inaccurate, and offensive to well-meaning public servants. Prosecutors are like any other profession, there are good and bad people. In my experience, prosecutors as a group far exceed other lawyers in their honesty and ethical conduct. And they show a lot of patience in the face of nonsense muckraking like this, both inside and outside of courtroom.

Also, the incoherent authors appear to partially blame bail, but don’t explain how the race-neutral bail system fits their “prosecutors are racist” theory.  Is it bail that’s causing this?  Or racist prosecutors?  The authors can’t decide.  They just know that prosecutors “destroy livelihoods, and tear families apart” “destroy communities of color” and “devastate low-income communities.”  Not criminals; prosecutors are to blame.  Who thinks like this?  More stupidity: the study found disparities in Wisconsin, therefore “New York must eliminate money bail.”  What?

I just hate-read this again before finishing up and noticed this was written by public defenders.  Assuming they believe in their work, their agenda is clear. Not all public defenders make dumb, incoherent arguments.  Not all public defenders are quick to accuse the other side of racism.  But it seems like these two are a great example of everything that’s wrong with the defense bar.

Perils of Plea Bargaining

“Justice and liberty are not the subjects of bargaining and barter.”  (Shelton v. United States (5th Cir. 1957) 246 F.2d 571, 579.)  This noble statement is simply not true: 90% of all convictions in the United States are obtained by plea bargain, rather than by trial.  The system of plea bargaining, therefore, has almost overwhelmed the system of trial by jury, and we must be constantly aware of how it may go wrong.  Specifically, we should guard against conflicts of interest on the part of the lawyers that my produce unjust outcomes for victims and defendants.

Lawyers’ self-interest can skew the outcomes of plea bargaining.  On the defense side, a public defender may be, and in some places always is, overworked.  A new case may come in for arraignment that would contribute significantly to the attorney’s workload.  In that situation, the defense attorney may recommend a quick plea bargain to dispose of the case.  This might not even be a bad thing.  When the public defender is dumping this case in order to focus on her more significant cases, the defendant in those significant cases may benefit.  In this way, the public defender is exercising something like prosecutorial discretion.  It is not controversial, after all, for a prosecutor to refuse to file a relatively unimportant case because her energies are already spent on other more important cases.  Defense lawyers do not have this formal power, but if they are willing to accept bad plea deals, they have this power in practice.  I have even seen this in action, especially in misdemeanor courts.  In this situation, the defendant loses his right to aggressive representation on his behalf.

Prosecutors, in turn, may be motivated to make unnecessarily lenient plea offers.  Even the best criminal code is written in general language, and there are often problems in application to individual cases.  As Albert W. Alschuler has said, “individual prosecutors may be influenced […] by a desire to smooth out the irrationalities of the criminal code.”  (Alschuler, The Prosecutor’s Role in Plea Bargaining (1968) 36 U. Chi. L.Rev. 50, 71-79.)  Prosecutors may be faced with weak cases that they still believe in.  For example, if a prosecutor believes she can prove a case beyond a reasonable doubt but feels that it is very unlikely, she may plea bargain to ensure a conviction, regardless of whether the punishment is too lenient.  Better something than nothing, after all.  Prosecutors may plea bargain to avoid harsh minimum sentences.  They may also plea bargain to protect victims who do not wish to testify.  None of these motivations would constitute a conflict of interest.

But there are other, less reputable reasons why prosecutors may plea bargain where conflict of interest rears its ugly head.  Prosecutors are often evaluated on their performance by looking at their trial statistics.  More guilty verdicts are better, obviously, than hung juries or acquittals.  Ambitious prosecutors, and we are all ambitious, pay attention to this record more than any other measure of performance.  When a difficult case comes along, this type of evaluation puts prosecutors in a tough position.  The prosecutor may feel that the defendant deserves a particular sentence.  Let’s say 20 years, for example.  But she knows that the case is difficult to prove, and that juries are unpredictable.  If the defendant is willing to take 10 years, a prosecutor may be tempted to agree to this to preserve her trial record.  After all, if she takes the case to trial because she doesn’t feel that 10 years is a punishment that fits the crime, she risks a loss on her record.  A loss that would be held against her when her performance is evaluated.  How much more important is justice (that the punishment fit the crime) than the prosecutor’s career?  It’s a question that shouldn’t have to be asked, but that I’m sure is asked all the time.

The problem of conflict of interest during plea bargaining is particularly acute with private defense attorneys.  It may even be in a private defense attorney’s self-interest to recommend rejection of a favorable plea agreement.  For example, if a private defense attorney bills by the hour, his economic self-interest would be to spend as many hours on the case as possible.  A favorable offer at the beginning of the case would nip that opportunity in the bud.  A private defense lawyer may run into the same problem if they are charging by the motion, if they are able to charge more for a writ, for a habeas corpus proceeding, or to handle an appeal.  Private lawyers may even want the practice of conducting a trial, to improve their trial skills, regardless of the potential consequences for their clients.  On the other hand, many private attorneys are paid a flat fee to take a criminal case, regardless of whether they dispose of it quickly or take it to trial.  It’s much easier to take the fee and take the plea than to prepare a complex trial.

Plea bargaining will continue until more lawyers are hired or less cases are filed.  Many people feel that the current situation cries out for reform.  When someone’s freedom is at state, it pays to do things right.

Exiled from the Gym

I used to love working out during my lunch hour.  I felt like a disciplined, focused, ass-kicking professional.  I would walk into the gym, in my court clothes, and everyone would recognize me.  After showering, I would put my tie on in the locker room, as proud of my neckwear as I was of my bench press.  And then back to work, feeling refreshed, feeling like I was “ahead” for the rest of the day.  The gym was right by the courthouse, smack dab in the middle of my jurisdiction.  Which is to say, it’s not in a nice area.  But lunchtime was the only time that I really felt like I was getting out there in the community.  The courthouse itself is a fortress (most are) and the interaction that you have in the courthouse is mostly with the defendants and their families.  They are never happy to see you.  Your win is their loss.  At the gym, I could just fool myself into thinking that I was seeing victims, and family members, people who wanted their streets to be a little cleaner, people who were happy when I did a good job.

I was not surprised when I found out that a notorious member of a local gang had been arrested in the gym parking lot.  He was selling crack.  When the officers approached, they recognized him, pulled him out of the car, and discovered marijuana inside.  They didn’t find crack, but when they put the defendant in their squad car, he tried to hide the crack in his own crack, if you catch my drift.

I had never done a felony drug case before.  I talked it over with my wife, and with others, and their reactions surprised me.  None of them seemed very upset about the crime.  Most of them predicted that the jury would think that this case was waste of their time.  I tried to settle the case on the basis of their doubts, but the defendant wanted his trial, and I gave it to him.

The defense lawyer continually played the race card during the trial.  The arresting officers were white and the defendant was black.  She accused them of framing him.  Why would they do it?  “Because they could,” she said.  Because who cares about someone like poor old defendant.  This seemed silly to me and I stuck to the facts.

I felt optimistic at the end, and when I heard the jury had a quick verdict, I was sure of success.  I even had another lawyer stand in for me to take the verdict.  The ritual in this situation was for him to text “Guilty!” and everyone to celebrate.  But no texts came, none at all, and I started to worry.  Finally, after about an hour, I was told that the jury had returned a verdict of not guilty.  I was shocked.  A coworker interviewed the jury afterwards.  The jury foreperson said, “I think the prosecutor underestimated us.”  They wanted DNA testing on the bag of drugs recovered from the defendant’s butt crack.  They wanted fingerprinting.  They wanted a crime lab working in shifts to analyze everything.

I can’t go back to my gym now.  The defendant had plenty of time in custody as a pre-trial detainee.  All he did was work out.  The defendant testified that he had been arrested after working out, and based on his appearance during the trial, he never stopped.  Maybe that’s all he did while he was away.  The thought of being in a locker room with him is not something I’m especially comfortable with, now that I know about some other things that his gang has done.  In fact, every time I have a case with someone from that gang I think of him, running into him at the gym.  I know that nothing would happen, the statistics don’t lie, but it gives me pause.  It’s a small dilemma for me (and I’m sure I’ll go back eventually) but it’s an interesting reminder of what it must be like to live in that community full-time.  Of what it must be like to see people like my gang defendant on a daily basis.  Maybe that’s the lesson I should take to the gym when I return.

 

“That’s Not A Courtesy I Extend”

I had a hearing set in a robbery.  The victim arrived in the courtroom after I left to handle another matter in another courtroom.  When I was gone, the public defender approached the victim and asked to interview her, which she did.  The investigating officer arrived and noticed the two of them in an interview room.  He entered and asked if the public defender had told me that she wanted to interview the victim.  She said she hadn’t.  The officer told the victim to break off the interview.  This caused the officer and the public defender to get into a shouting match.  Meanwhile, I was cluelessly handling other matters downstairs.

The public defender ran into me downstairs and was the first to tell me what had happened.  She pointed out that it was not illegal for her to interview my victims (even though it is illegal for me to talk to her defendants).  Told her I agreed with her on the law.  Then I said, “I would just ask you, as a professional courtesy, to let me know when you want to speak to a victim.”  She said, “that’s not a courtesy I extend.”  We left it at that.

I was annoyed, of course.  I blew off some steam with the investigating officer upstairs.  But the interaction resurfaced on the commute home, where all forgotten annoyances resurface.  What is the proper response to this?

I could let it go.  She’s right on the law.  Defense counsel can interview victims.  It’s important to get along with people you work with.  Even defense counsel.  Prosecutors are supposed to hold themselves to a higher ethical standard than defense counsel.  In practice, this seems to mean letting them get away with all sorts of underhanded things.  The defense bar seems to be so used to this that they get angry when I even suggest that both the prosecution and the defense should be treated equally.  I could let her get away with this.

I could retaliate by withholding my own “courtesies.”  One thing in particular that popped into my mind was changing my existing practice when it comes to witnesses.  Now, I allow defense counsel to interview my witnesses, and even encourage it, as long as I am present.  I could no longer do that.  Instead, I could always advise them not to.  I could explain to the witness that this defense lawyer’s job is to make you look untrustworthy and stop a fact-finder from believing you.  I could explain that this lawyer would have consider letting their victimizer out on the street to be a successful result.

I could take the defense interview option off the table by having victims wait to testify in my office.  This may inconvenience me in 100 cases and solve the “no courtesy” problem in one case.  In other words, it might not be worth it.  But it would also solve a related, and even more annoying problem: gamesmanship over witness attendance.  How often has a defense lawyer based their decision to take a plea on whether a witness is present?  This seems to be a bad way to practice law: justice for only those victims that can come to court.  But I digress.

I’m still annoyed, even as I sit here today, long after the fact.  Maybe not in the right frame of mind to make a decision.   But at least I got to spend the commute thinking about delicious retaliation.