Wednesday, December 30, 2020
By ROGER M. GRACE, Editor
The Association of Deputy District Attorneys yesterday notified Los Angeles County District Attorney George Gascón that it will be filing a petition for a writ of mandate today in the Los Angeles Superior Court challenging special directives he issued on Dec. 7, the day he took office.
In particular, the petition will seek a rescission of the order to desist from alleging priors which, it is alleged, is in contravention of the Three Strikes Law which mandates that all priors be set forth in the information or indictment. the METNEWS has learned.
Gascón’s order is “illegal,” one prosecutor commented, and puts deputies “in a precarious ethical predicament” where they must choose between doing what they are told to do or following the law.
Also to be contested is the directive to move for the dismissal of sentencing enhancements previously alleged (except, under a Dec. 18 amendment to a Dec. 7 directive, in narrow circumstances). The motions under Penal Code §1385 must be “in furtherance of justice” and, the prosecutor said, just as a judge cannot dismiss allegations based on a mere preference, deputy district attorneys cannot ethically ask that actions be taken unsupported by the facts in a particular case.
Related to that is the contention that Gascón must be judicially barred from blocking deputies from handling each case as an individual case.
Also to be asserted is that under Code of Civil Procedure §1385.1, once a defendant has been found guilty of a special-circumstance murder, the special-circumstance allegation may not be stricken.
Representing the ADDA are Eric George, son of former Chief Justice Ronald M. George, and Thomas P. O’Brien, former United States attorney for the Central District of California, both of the Los Angeles law firm of Browne George Ross O’Brien Annaguey & Ellis LLP.
In response, University of California at Berkeley Law School Dean Erwin Chemerinsky, Stanford Law School Professor David Mills, and Michael Romano, director of Stanford Law School’s Three Strikes Project, issued this statement:
“We are confident this attempt to obstruct the will of the voters will be struck down.
“The California Supreme Court has held that California district attorneys ‘are given complete authority to enforce the state criminal law in their counties.’ The Deputy District Attorneys Association’s concern over striking enhancements is consistent with their decades-long silence when former District Attorneys often dismissed enhancements and Three Strikes allegations in the interest of justice. That the Association now claims the practice to be unlawful is more reflective of their longstanding opposition to reform and the will of millions of Angelenos than it is the legality of DA Gascón’s directives. DA Gascón’s policies will enhance health and safety in Los Angeles and begin a much needed process to reduce epidemic levels of mass incarceration.”
Reaction to Statement
This was the reaction of another deputy district attorney to the press release:
“Professor Chemerinsky’s press release is as bereft of relevant legal argument as it is bloated by self-aggrandizement, radical extremism, and flat out untrue statements. It appears to be an attempt to try the issue in the press, rather than in court. To say that ADDA’s action is inconsistent with ‘their decades-long silence…when former District Attorneys often dismissed enhancements’ is utterly false and deliberately misleading. Enhancements were dismissed for a variety of reasons (such as case settlement or problems of proof), however always on a case by case basis after proper review.
“Gascon’s ill-conceived Special Directives do not allow for such consideration and his lame attempt to walk back the command of his initial blunderbuss SD-20-08 provides only a very limited opportunity for disobeying Gascon’s puppet masters in Northern California. When former DA Steve Cooley announced his policy on charging third strikes cases, it was done with thought and consultation and most importantly, it allowed DDAs the opportunity to seek permission to file a Third-Strike case where a factual and legal argument could be made to show that the defendant was suitable for sentencing under the Three-Strikes law regardless of the fact that the instant crime was not serious or violent.
“Finally, even though a majority of voters in LA County elected Gascon, that does not trump the illegality of Gascon’s orders. Voters also supported proposition 187, and that was subsequently found to be unconstitutional. Perhaps Professor Chemerinsky forgot that inconvenient truth?”
Cooley, commenting on the press release, said:
“Erwin Chemerinsky (Berkeley), David Mills (Stanford), and Michael Romano (Stanford) should come down from their Northern California ivory towers to defend Gascón’s directives.
“Maybe quisling Mario Trujillo [special advisor to Gascón], Grade 2 Chief Deputy Iniquez, and hybrid DPD and LA DA wanna be Tiffiny Blacknell should defend against this writ challenge. After all they are ‘true believers’.”
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