In New ‘Special Directive’ Enhancement Allegations Will Be Permitted in Some Types of Cases
By a MetNews Staff Writer
Los Angeles County’s new district attorney, George Gascón, on Friday retreated from his proclamation on Dec. 7, his first day in office, that deputies, going forward, may not allege enhancements, ever, and must ask the judge in each case in which such allegations have been made to strike them “in the furtherance of justice.”
Gascón said in one of nine “special directives” that “sentence enhancements or other sentencing allegations, including under the Three Strikes law, shall not be filed in any cases and shall be withdrawn in pending matters.” On Thursday, he proclaimed no exceptions can be made—otherwise, he said, the exceptions would “swallow the rule.”
However, on Friday, Gascón proclaimed in an “amendment” to the no-enhancements edict:
“This Office is committed to eliminating mass incarceration and fostering rehabilitation for those charged with crimes. As such, this Office will not pursue prior strike enhancements, gang enhancements, special circumstances enhancements, out on bail/O.R. enhancements, or Penal Code section 12022.53 enhancements. After listening to the community, victims, and my deputy district attorneys, I have reevaluated Special Directive 20-08 and hereby amend it to allow enhanced sentences in cases involving the most vulnerable victims and in specified extraordinary circumstances. These exceptions shall be narrowly construed.”
Enhancements may now be sought where the defendant is charged with a hate crime, elder abuse or abuse of a dependent adult, child abuse, child or adult sexual abuse, sex trafficking, or financial crimes “where the amount of financial loss or impact to the victim is significant, the conduct impacts a vulnerable victim population” or where a freeze of the defendant’s assets is sought so that payment of restitution of fines may be facilitated.
Friday’s order to deputies says that enhancements may also be sought in “extraordinary circumstances with written Bureau Director approval upon written recommendation by the Head Deputy…where the physical injury personally inflicted upon the victim is extensive” or “the type of weapon or manner in which a deadly or dangerous weapon including firearms is used exhibited an extreme and immediate threat to human life.”
However, the amended directive specifies that enhancements may not be sought where an allegation would result in a sentence of life without possibility of parole (“LWOP”) or, generally, based on priors. It bars firearms allegations, gang-membership allegations and references to violations or probation or own-recognizance release.
Deputies remain under orders to seek a retraction of any enhancement allegations set forth in informations or indictments filed in the administration of Gascón’s predecessor as district attorney, Jackie Lacey, except as permitted by the new directive.
The order spells out that “[i]f the charged offense(s) is probation-eligible, probation shall be the presumptive offer,” though deputies may seek a deviation from the policy where “extraordinary circumstances exist.”
Deputies have expressed discomfort over representing to judges that it would be in furtherance of justice to drop enhancement allegations where the facts surrounding the crimes do not, in their view, justify such an action, saying this would contravene their ethical obligation not to lie to courts. Some judges have evinced an unwillingness to be bound by a district attorney’s directive, and at least one Los Angeles Superior Court judge— Shellie Samuels—has been targeted by Gascón for blanket-affidaviting.
On Friday, Los Angeles Superior Court Judge Lisa Lench granted a motion to dismiss enhancements in a case, notwithstanding that Deputy District Attorneys Philip Stirling and Sarika Kim told her that the motion was based solely on the then-blanket policy that deputies seek to dismiss every special allegation enhancement in every case, and was not based on the specific facts in the present case.
In their written motion, they detailed the facts, reflecting particular callousness, and distanced themselves from the motion, each declaring that “[w]ithout further guidance from my Office, I am not able to reconcile office policy with” professional obligations.
Lench dismissed all three special circumstances (robbery, kidnapping, and lying in wait), reportedly without stating a reason.
Also on Friday, the Association of Deputy District Attorneys released a statement taking a slap at Max Szabo, a political strategist. While previous district attorneys have relied on staff members to respond to media inquiries, Gascón’s spokesperson is Szabo, of Szabo & Associates in San Francisco.
The ADDA recited:
“In a statement to Fox 11, Maxwell Szabo, presenting himself as a spokesperson for the Los Angeles District Attorney’s Office, attacked our member. Deputy District Attorney Jon Hatami, referring to him as “delusional” and questioning his fitness to practice law.”
Hatami has publicly criticized Gascón’s policy on enhancements.
The ADDA statement continues:
“Deputy District Attorney Hatami, like all of our members, is a tireless advocate for victims. He is a veteran prosecutor with a wealth of experience in prosecuting child murderers. As a prosecutor, he has tried over seventy cases before a jury. This attack by Mr. Szabo, who was admitted to the bar in May 2019, who is not a prosecutor nor even employed by the Los Angeles District Attorney’s Office, and who represents that he is the spokesperson for Gascon’s ‘transition team,’ is not only unwarranted but entirely without merit.
“We demand these pubic attacks on our members cease.”
One deputy district attorney commented that Szabo is “acting as a mouthpiece” for Gascón but, unlike staff public information officers, is not subject to public accountability.
There are now said to be 24,409 members of a “Recall George Gascón” group on Facebook.
Copyright 2020, Metropolitan News Company