Metropolitan News-Enterprise

 

Wednesday, January 13, 2021

 

Page 1

 

Statewide Prosecutors Group to Aid ADDA’s Battle Against Gascón

Solicitation of Funds for Recall Efforts Starts

 

MICHAEL HESTRIN

Riverside District Attorney

VERN PIERSON

El Dorado District Attorney

 

By a MetNews Staff Writer

 

A statewide association of prosecutors yesterday said it will seek leave to file an amicus curiae brief in Los Angeles Superior Court in support of the position of the local county prosecutors’ union that “special directives” issued by District Attorney George Gascón are unlawful.

That announcement came the same day that the Victims of Violent Crime for the Recall of George Gascón declared that it has filed papers enabling it to accept campaign donations and that it will begin circulating a recall petition on March 8. Collecting of signatures is legally barred until a public official has been in office for at least 90 days.

A letter of support was sent yesterday on behalf of the California District Attorneys Association (“CDAA”) to Los Angeles Deputy District Attorney Michelle Hanisee, president of the Association of Deputy District Attorneys (“ADDA”), which brought the litigation against Gascón. The CDAA was a major force behind the successful effort to deny voter confirmation in 1986 to Chief Justice Rose Bird and Justices Joseph Grodin and Cruz Reynoso.

Signing the letter were El Dorado County District Attorney Vern Pierson, president of CDAA, and Riverside County District Attorney Michael Hestrin, the CDAA Ethics Committee co-chair.

Earlier Criticism

Gascón’s policies—which include alleging no strikes under the Three Strikes Law and moving for dismissal of strikes alleged under Gascón’s predecessor, Jackie Lacey—previously drew fire from Orange County District Attorney Todd Spitzer, San Diego County District Attorney Summer Stefan, Kern County District Attorney Cynthia Zimmer and Sacramento County District Attorney Anne Marie Schubert.

In yesterday’s letter (which appears below), Pierson and Hestrin said:

CDAA has grave concerns that recent policy directives implemented by the newly elected Los Angeles County District Attorney George Gascón undermines California’s bedrock expectation that prosecutors will never abandon their obligation to advocate passionately for crime victims. These mandates ignore our laws and governing ethical standards. Under threat of insubordination charges and termination, such directives prevent Los Angeles County prosecutors from carrying out the statutory and constitutional obligations they are mandated to perform on behalf of crime victims.”

‘Windfall’ for Criminals

Taking aim at Gascón’s policy against alleging enhancements that could result in a sentence of life without possibility of parole (“LWOP”), the CDAA letter says:

“Criminals in Los Angeles County have been bestowed an unimaginable windfall. Owing to these new directives, in Los Angeles County today a gunman might open fire and kill dozens, yet prosecutors cannot seek life imprisonment without the possibility of parole, because they are categorically prohibited from alleging this enhancement. A one-size-fits- all approach to individuals charged with crime is both arbitrary and ineffective. By prohibiting prosecutors from using the basic tools necessary to seek justice, the District Attorney figuratively places his hand upon the scales of justice, and tips that scale against crime victims, in favor of criminal defendants.”

That policy, it appeared yesterday morning, was being broadly reexamined. An internal memo surfaced from Gina T. Satriano, director of the Bureau of Branch & Area Operations, Region I, to nine higher-ups in the office bearing the subject line, “Urgent Message Regarding Special Circumstance Murder Cases,” and advising:

“The Administration intends to take a more detailed review of special circumstance cases. Per the Interim Chief Deputy, please have assigned deputies put over cases with special circumstance allegations for at least 30 days as the Office determines how it will proceed on special circumstance cases.”

Correction Issued

However, a correction was issued later, saying:

“You should only continue for 30 days those pending special circumstance cases where the Special Circ Committee had already approved death.”

The correction substantially limited the scope of the reexamination, with possibly no practical effect given the moratorium on the death penalty in California.

Gascón on Dec. 7—his first day in office—issued nine “special directives,” of which said:

“Special Circumstances allegations resulting in an LWOP sentence shall not be filed, will not be used for sentencing, and shall be dismissed or withdrawn from the charging document.”

Special circumstances—which, under Penal Code §190.2 preclude any sentence other than death or LWOP—include the murder of a peace officer, federal law enforcement officer, fire-fighter, or a witness killed for the purpose of precluding testimony.

Gascón on Dec. 18 backed down from his Dec. 7 edict that no sentencing enhancements could be alleged, but authorized the pleading of enhancements only under limited circumstances “in cases involving the most vulnerable victims and in specified extraordinary circumstances.” He specified in the “amendment” to a directive that the office “will not pursue prior strike enhancements, gang enhancements, special circumstances enhancements, out on bail/O.R. enhancements” or gun-use enhancements.

Satriano’s email signals a possible further retreat from Gascón’s Dec. 7 blanket prohibition on alleging special circumstances, but of narrow scope.

Chrstina Solano, sister of slain Los Angeles County Deputy Sheriff Joseph Solano who has publicly expressed concern that the alleged killer, Rhett Nelson, will not be sentenced to LWOP in light of Gascón’s policies, said yesterday of the recall effort:

“It’s a completely professional effort.”

(Los Angeles Superior Court Judge Joseph Sandoval on Monday denied a prosecution request to withdraw enhancement allegations.)

Victims rights attorney Brian Claypool remarked:

 “The recall is an important way for victims’ voices to be heard.”

 

*****

 

CDAA Assails Gascón’s Policies

 

The California District Attorneys Association (CDAA) is an organization for California’s deputy district attorneys and the individual elected District Attorneys who lead them. Complementing CDAA’s primary mission of educating and training the state’s approximately 5,000 prosecutors, we also educate the public about the many challenges that prosecutors face in the courtroom in their pursuit of justice on behalf of California’s crime victims.

CDAA is not a regulatory body and does not typically address policy differences among the 58 elected District Attorneys. However, CDAA believes it must act when policies implemented by an individual District Attorney go beyond the exercise of discretion to contravene the state constitution and prosecutor ethics.

CDAA has grave concerns that recent policy directives implemented by the newly elected Los Angeles County District Attorney George Gascón undermines California’s bedrock expectation that prosecutors will never abandon their obligation to advocate passionately for crime victims. These mandates ignore our laws and governing ethical standards. Under threat of insubordination charges and termination, such directives prevent Los Angeles County prosecutors from carrying out the statutory and constitutional obligations they are mandated to perform on behalf of crime victims. We note Mr. Gascón previously served two terms as San Francisco County District Attorney and was a member of CDAA.

CDAA’s membership has wholeheartedly committed itself to eliminating from our criminal justice system all forms of bias and discrimination, express or implied. However, CDAA is compelled to object when policy directives do not reform but instead subvert our system of justice and the ability of prosecutors to advocate on behalf of crime victims.

In California, a crime victim’s rights are so cherished that our state constitution took care to enumerate them specifically: “Victims of crime are entitled to have the criminal justice system view criminal acts as serious threats to the safety and welfare of the people of California.” (Cal. Const., art. 1, § 28(a)(2).) “California’s victims of crime are largely dependent upon the proper functioning of government, upon the criminal justice system and upon the expeditious enforcement of the rights of victims of crime described herein, in order to protect the public safety and to secure justice when the public safety has been compromised by criminal activity.” [Ibid.)

Our constitution rightly connects a crime victim’s realization of justice to the personal safety and welfare of all of California’s citizens, and unequivocally encompasses a clear warning that—when justice for a crime victim is threatened—we are collectively threatened.

The Los Angeles County District Attorney’s new policy directives ignore this most vital of constitutional mandates. Although these policies are limited to Los Angeles County, the reverberations will be felt statewide. The Los Angeles County DA’s Office has historically served as a persuasive state influence. The new policy directives imperil this legacy.

Mr. Gascón delivered several instructions through a series of Special Directives issued on December 7, 2020.

Sentencing Enhancement Directive

The Special Directive regarding sentencing enhancements is likely the most troubling. That policy states, “It shall be the policy of the Los Angeles County District Attorney’s Office that the current statutory ranges for criminal offenses alone, without enhancements, are sufficient to both hold people accountable and also to protect public safety.” Such a proposition is patently untrue.

Crime “enhancements” are a foundation to the fair administration of justice. They ensure punishment fits the crime by taking into consideration both the facts and circumstances of the present crime and the offender’s prior criminal record. By prohibiting prosecutors from pursuing enhancements (and by directing that prosecutors dismiss pending enhancements in the “interests of justice”), this policy eliminates the graduated system of punishment enacted by the Legislature and the People of California.

This directive will not work in practice. For example, if a defendant commits a robbery (a “strike”) by pointing a handgun at a store clerk, California law recognizes that he can be punished for both the act of robbing the clerk and his use of the gun. By prohibiting the gun enhancement, this new policy seeks to punish a gun-wielding robber the same as a defendant who snatches a purse from a victim’s shoulder. Worse, if this defendant commits yet another robbery he would effectively be treated as a first-time offender. In fact, at least in Los Angeles County, the defendant could commit an endless string of robberies and still face no greater punishment for the successive crimes.

This directive proved so contentious that it had to be twice amended within a matter of days. Imagine that the above defendant shot his victim during a robbery. California law authorizes gun-use enhancements, yet, shockingly, Los Angeles county prosecutors would be prohibited from using those enhancements to protect the community. On December 18, 2020, this directive was amended to allow for a gun discharge allegation, but only in “extraordinary circumstances with written Bureau Director approval upon written recommendation by the Head Deputy

Criminals in Los Angeles County have been bestowed an unimaginable windfall. Owing to these new directives, in Los Angeles County today a gunman might open fire and kill dozens, yet prosecutors cannot seek life imprisonment without the possibility of parole, because they are categorically prohibited from alleging this enhancement. A one-size-fits-all approach to individuals charged with a crime is both arbitrary and ineffective. By prohibiting prosecutors from using the basic tools necessary to seek justice, the District Attorney figuratively places his hand upon the scales of justice, and tips that scale against crime victims, in favor of criminal defendants.

Bail Directive

In a very limited sense, CDAA agrees with this directive’s observation that despite “California voters [choosing] not to implement SB 10 through the passage of Proposition 25, the conversation about bail reform remains active and robust.” However, this directive commands that prosecutors stop providing the courts with case-specific guidance on bail, which is usually based on a victim’s safety, the public’s safety, and an accused’s demonstrated history of past violence and flight risk. This directive instead casts criminal offenders (described as “court-involved individuals”) as the real victims: “It is our duty ... [to] ensur[e] that our office’s prosecutorial actions do not inflict needless harm on court-involved individuals through unnecessary incarceration.”

The directive further states that prosecutors may “not request cash bail for any ... non-serious felony, or non-violent felony offense[,]” thereby eliminating a prosecutor’s discretion to seek bail in cases involving the actual infliction of violence. This clearly violates a victim’s constitutional right to have their safety considered in setting bail. For example, bail may not be requested by Los Angeles County prosecutors in some felony cases involving violence, such as assault likely to cause great bodily injury, in violation of Penal Code section 245(a)(4).

Our constitution confers on crime victims the right to expect that a criminal offender will be “appropriately detained in custody.” (Cal. Const., art. 1, § 28(a)(4).) It also confers on a crime victim the right “[t]o have the safety of the victim and the victim’s family considered in fixing the amount of bail and release conditions for the defendant.” (Cal. Const., art. 1, § 28(a)(16).) Yet this bail directive prevents prosecutors from advocating for crime victims. In fact, it never even refers to victims, much less a victims constitutional rights.

Parole Hearing Directive

In another example illustrating a disregard for a victim’s rights, yet another directive requires that Los Angeles County prosecutors not attend parole hearings. Moreover, prosecutors are directed to support—in writing—a grant of parole to those inmates who have served a minimum incarceration term. This directive requires that prosecutors cease from evaluating the ongoing criminal propensities of a prison inmate, because there is “already a presumption that people shall be released when they have reached their minimum eligibility parole date.” In other words, prosecutors are now directed to “presume” that an inmate does not pose a danger to the victim or to the public.

Despite the claim that a prosecutor’s role at a parole hearing is “limited,” prosecutors have always played an important role in helping ensure that the Parole Board does not release inmates who still pose an unreasonable risk of danger to a victim or to the public. (Cal. Code Regs., title 15, § 2281(a).) “The role of the prosecutor is to comment on the facts of the case and present an opinion about the appropriate disposition.” [Id. at § 2030(d)(2).)

Los Angeles County’s crime victims are already being shortchanged by directives that tie the hands of prosecutors against seeking just and appropriate sentences. To add insult to injury, this directive again tips the scales of justice against crime victims, by requiring those same prosecutors to later facilitate an inmate’s release, without regard for the victim’s needs and wishes, nor the public’s safety.

Los Angeles County’s prosecutors have been placed in an impossible position, having been directed to disregard California’s rule of law and the constitutionally protected rights of victims of crime. Despite arbitrary directives, prosecutors are legally bound to “support the Constitution of the United States and the Constitution of the State of California” (Bus. & Prof. Code, § 6067) and to “support the Constitution and laws ... of this state” [Id., § 6068(a)), which includes advocating for the rights of victims (Cal. Const., art. 1, § 28(a)). CDAA stands firm with Los Angeles County deputy district attorneys and victims and their families. In seeking justice, prosecutors work relentlessly and courageously for California’s crime victims. Even in the most perfect of circumstances, the job of a prosecutor has always been exceptionally challenging. Now Los Angeles County’s deputy district attorneys face unprecedented demands to ignore the very oath they take as officers of the court. CDAA cannot remain silent when the ethical responsibilities of our colleagues are threatened in this manner. Nor should Californians turn a blind eye to this emerging public safety tragedy; they deserve better.

 

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