Thursday, December 31, 2020
Judge Sets Feb. 2 Hearing on ADDA’s Action for Injunction
Gascón, Defendant in Action, ‘Commends’ Court on Decision; Vice President of Prosecutor’s Union Responds That No Ruling Was Made in District Attorney’s Favor, Says Request for TRO Was Withdrawn, Not Denied
By ROGER M. GRACE, Editor
A judge yesterday set a Feb. 2 hearing on a petition by the Association of Deputy District Attorneys for a writ of prohibition/mandate seeking to bar Los Angeles County District Attorney George Gascón from enforcing some of his special directives aimed at utilizing a light touch in dealing with criminals, with Gascón proclaiming a victory because a temporary restraining order was not issued.
A press release with the heading “District Attorney George Gascón Issues Statement on Legal Challenge & Commends Court for Declining to Issue a TRO” quotes him as declaring: “I commend the court for its decision today.” (The full statement appears below.)
However, the court made no decision in Gascón’s favor, Deputy District Attorney Eric Siddall, vice president of the ADDA, pointed out.
On Tuesday, the ADDA notified Gascón, in writing, that at 8:30 a.m. the following day, “Petitioner will appear ex parte for a temporary restraining order and an order to show cause.” However, Siddall said, “the TRO was never heard—we withdrew it.”
The complaint seeks (in addition to writ relief and a declaratory judgment) “a temporary restraining order, preliminary injunction, and permanent injunction barring enforcement of the Special Directives.”
To quicken the process, Siddall explained, the ADDA agreed to an expedited briefing schedule, with the controversy being essentially resolved on Feb. 2. Los Angeles Superior Court Judge James C. Chalfant, who sits in Department 85, a writs department, will at that time hear the request for a preliminary injunction.
Opposition is due on Jan. 15 and the ADDA’s reply must be filed by Jan. 26.
The minute order from yesterday’s proceeding, presided over by Los Angeles Superior Court Judge David J. Cowan, corroborates Siddall’s account. It says:
“Department 85 being dark this date, matter is called for hearing in Department One and argued.
“Thereafter, petitioner elects to withdraw its application for a temporary restraining order.
“An order to show cause re preliminary injunction is scheduled for February 2, 2021, at 1:30 p.m. in Department 85.”
“We look forward to having the procedure fully heard on Feb. 2, 2021.”
The ADDA said in a statement:
“We are gratified by today’s action by the Master Calendar department of the Los Angeles Superior Court. Department 1 ordered the respondent parties (District Attorney George Gascón and the District Attorney’s Office) to show cause why an injunction should not issue enjoining enforcement of the unlawful portions of their Special Directives.”
Purpose of Petition
The petition—filed yesterday morning, and not Tuesday (contrary to a report elsewhere)—says in the introduction:
“1. Respondent George Gascon, within weeks of his investiture as Los Angeles County’s District Attorney, has issued Special Directives that are not merely radical, but plainly unlawful. They command the deputy district attorneys (the ‘DDAs’) of Respondent Los Angeles County District Attorneys Office to violate California’s constitution and laws:
“•With respect to future cases, the Special Directives prohibit DDAs from charging mandatory criminal sentencing enhancements under the Three Strikes Law, which California enacted to protect its citizens from previously-convicted serious and violent felons; and
“•With respect to pending cases, the Special Directives require DDAs to withdraw all pre-existing enhancement allegations for six different types of sentencing enhancements.
“These provisions are plainly illegal….DDAs cannot be commanded to violate the very sentencing enhancements that California law mandates.
“2. As this County’s District Attorney, Respondent Gascon enjoys wide—but not limitless—discretion in exercising his prosecutorial functions. He may not ignore, but must enforce, California’s mandatory sentencing enhancement laws. They were adopted by California voters or elected legislators, then signed into law by the governor, and then tested and found constitutional by the judiciary. Such democratically-enacted mandates overcome Respondent Gascon’s personally-held—and legally-irrelevant—views about the wisdom or constitutionality of California’s mandatory sentencing enhancement laws. By implementing Special Directives that direct DDAs to violate California law. Respondents have plainly abused their discretion.
“3. This Court is both empowered and obligated to enjoin this abuse of discretion. Indeed, only the immediate issuance of injunctive relief will dissolve the unseemly dilemma Respondents have foisted on the DDAs. As California State Bar members who are duty-bound to uphold California’s constitution and laws, are the DDAs to follow their legal and ethical obligations? Or are they to follow their employer’s edict? They cannot do both. Do they risk disciplinary action by the California State Bar, or risk being terminated for noncompliance with their employer?
“4. This Court can and must, consistent with California’s separation of powers doctrine, issue immediate relief: (i) to declare illegal and unenforceable those offending portions of the Special Directives…; (ii) to enjoin Respondents from commanding DDAs to enforce such offending portions: and (iii) to restore to the DDAs the status quo ante by which the DDAs may continue to charge—and not be compelled to move to dismiss—those sentencing enhancements mandated by California law.”
Gascón, in his official capacity, and the District Attorney’s Office are named as defendants and respondents.
In particular, the petition is aimed at establishing that Gascón may not prohibit deputies from pleading and proving strikes for purpose of the Three Strikes Law; require that they move for the striking of enhancement allegations or special circumstances allegations in existing pleadings; or command them to move for leave to file an amended pleading which omits allegations that would result in an increase in prison terms.
Kent Scheidegger, legal director of the Sacramento-based Criminal Justice Legal Foundation, issued a statement yesterday saying:
“We commend the action of the Association of Deputy District Attorneys to protect the public from these harmful and misguided directives to the extent possible. While the District Attorney does have broad discretion in charging, Mr. Gascón’s directives go far beyond the limits of his office.”
Gascón’s statement yesterday was received by the METNEWS from a critic of the district attorney. The newspaper—which endorsed the reelection bid by then-District Attorney Jackie Lacey and has been critical of Gascón—has apparently been cut from the District Attorney’s Office press release list.
Yesterday, one of the District Attorney’s Office’s subscriptions was cancelled: the one that goes to the Administrative Office, which is the copy that would be read by the district attorney.
The subscription has been in place since 1996. The District Attorney’s Office explained, in an email:
“With new management taking over and budget cuts, certain items are being removed or cancelled for the mean time.”
District Attorney Elaborates on Goals
The following press release was issued yesterday by the Offiice of Los Angeles County District Attorney:
Attorney George Gascón Issues Statement on Legal Challenge
& Commends Court for Declining to Issue a TRO
From serving as a beat cop with the LAPD to Chief of Police in some of America’s most conservative and progressive cities, I have spent my life ensuring those who pose a threat to our community are held accountable and kept away from the rest of us.
During those years, enhancements and strike allegations have never been shown to enhance our safety. In fact, studies have shown excessive sentences exacerbate recidivism and create more victims in the future. For these reasons, as your elected District Attorney, I have asked Deputy District Attorneys entering an appearance “for the people” to end excessive sentencing practices. Data shows these harsh tactics compromise our community’s long-term health and safety, create more hardened criminals and victims, and therefore are not in the interests of justice.
After a summer of unrest. Los Angeles County voters embraced this new, modern approach. The will of the voters must not be mistaken as a commentary on the hundreds of Deputy DAs who labor, day in and day out, to protect the public. They are public servants who have earned our utmost respect and gratitude. They certainly have mine—and a sincere invitation to join me in making these much-needed changes. As we’ve seen in recent weeks, this new approach will take some fine-tuning and a tolerance for change. I invite open and respectful debate based on the facts, however, the people have spoken, the direction is clear and, in the end, we all want the same things—safety and equal justice under the law.
Despite today’s legal challenge, I believe a collaborative path exists to achieve these goals based on what research shows, what voters want, and what LA County deserves. I commend the court for its decision today, but ultimately it will take all of us, working together, to get this done.
Cooley, Braun Resign From POALAC Board
(The following is from a letter, dated today, from former Los Angeles District Attorney Steve Cooley and former FBI Special Agent Brent Braun, who headed white collar operations in Los Angeles, to the board of a peace officers association in protest to its decision not to turn its attention to special directives of District Attorney George Gascón.)
The undersigned hereby resign from the Board of Directors of the Peace Officers Association of Los Angeles County (POALAC). This is not a decision that was arrived at without difficulty as we represent over 65 years of combined volunteer service to the Association and the Board of Directors. We have at all times dedicated ourselves to serving with integrity, ethical behavior, and adherence to the law in order to promote and foster public safety for all our citizens.
The Mission Statement of POALAC states:
“Our mission is lead, train, facilitate, inspire, and advocate on behalf of federal, state, county and local law enforcement agencies and private sector security professionals to maximize the safety of those who depend on us.”
Recent directives published by the newly elected District Attorney of Los Angeles County, George Gascon, are completely contrary to the Mission Statement of the Peace Officers Association of Los Angeles Count)’, applicable law and guiding principles of reasoned and responsible members of the law enforcement profession.
In fact, according to news reports, Gascon’s own office stated that these new policies issued on December 7,2020, would result in hundreds of criminals being released as early as he next day. That is a very real and dangerous risk to public safety. He also ordered the review of over 20,000 cases to retroactively remove enhancements that resulted in longer prison time and was effectively limiting cooperation with victims of crime. This is completely contrary to the Mission Statement of the Peace Officers Association to which all Board Members subscribed.
These edicts have the immediate and direct effect of placing the public safety at risk. They demand Deputy District Attorneys engage in unethical conduct or otherwise face discipline. They also serve to seriously impair the mandated independence of the judiciary through threats of orchestrating candidates to challenge these judges when they are up for re-election if they fail to accept his policies in all cases.
We called for a Special Meeting of the Board of Directors to discuss these edicts, clearly identify the key points and issues based on the facts, and then collectively determine the next best steps. POALAC’s considered voice and duty to protect public safety should be heard.
A few bullet points drawn from DA Gascon’s policy directives are illuminating:
> Ordering ALL Deputy District Attorneys to NOT attend Parole Hearings in ALL cases.
> Ordering ALL Deputy District Attorneys NOT to file “enhancements” in criminal cases such as gang allegations, use of a firearm, prior criminal strike convictions in ALL cases. (See DA Special Directive 20-08.1)
> His transition staff requesting Deputy Public Defenders to report any Deputy District Attorney who is not abiding by sentencing policies of DA Gascon and referring them to DA Gascon for disciplinary action.
> Creating and maintaining a list of judges who deny motions to strike enhancements or prior strikes. Canon of Judicial Ethics 3.21 mandates judges make such rulings on an individual case- by-case basis not in deference to broad policies for application to ALL cases.
> Ending cash bail except in limited circumstances which are in turn impacted by the DA’s policies to remove certain enhancements that would otherwise render these crimes serious.
> Never seeking the Death Penalty.
> Never seeking Life Without Possibility of Parole (LWOP).
> Forbidding the trial of any juvenile in adult criminal court.
> Ordering Deputy District Attorneys to not file a variety of misdemeanors in seventy-eight (78) cities and the unincorporated areas of Los Angeles County.
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