D.A. Gascón Appears to Sever Relations With CDAA
By a MetNews Staff Writer
Los Angeles County District Attorney George Gascón, whose special directives have been assailed by a statewide group of prosecutors, is apparently cutting off relations between his office and that group.
Incurring the enmity of the new prosecutor is the California District Attorneys Association (“CDAA”), which is supporting the local Association of Deputy District Attorneys (“ADDA”) in its bid to block policies against alleging strikes or other factors that would create a boost in sentences and requiring deputies to move to withdraw allegations made under the administration of former District Attorney Jackie Lacey. The group on Tuesday applied for permission to file an amicus curiae brief in support of the ADDA’s motion for a preliminary injunction, to be heard Tuesday afternoon by Los Angeles Superior Court Judge James Chalfant.
A knowledgeable source told the METNEWS:
“What has happened is that upper management was given a CDAA membership paid for by the office.
That has been cancelled.
“And the two DDAs assigned to Sacramento are not allowed to sit on the CDAA legislative committee.”
The source queried, with apparent reference to Gascón cancelling one of his office’s subscriptions to the METNEWS—the copy that had gone to Lacey: “Does this type of retaliatory action sound familiar?”
Confirmation From CDAA
The CDAA’s executive director, Greg Totten, former Ventura County district attorney, confirmed yesterday that on Tuesday, the organization’s legislative director was advised that two Los Angeles deputy district attorneys, who serve as lobbyists for their office, were “directed to sever their ties with CDAA.”
“They both have served on CDAA’s Legislation Committee for many years and routinely coordinate activities with CDAA’s lobbyists and lobbyists for the San Diego County, Alameda County and Orange County DA’s offices.”
Larry Morse, former district attorney of Merced County, is CDAA’s legislative director. He said of the two Los Angeles DDAs, Daniel Felizzatto and Tamar Tokat:
“Both are very talented, experienced lobbyists with whom we have worked closely over the years.”
The CDAA on Jan. 12 said in a letter to ADDA President Michelle Hanisee:
“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.”
The letter asserted that “[c]riminals in Los Angeles County have been bestowed an unimaginable windfall” by virtue of Gascón’s policies. The policies were announced Dec. 7, the day he took office.
El Dorado County District Attorney Vern Pierson, president of CDAA, and Riverside County District Attorney Michael Hestrin, the CDAA Ethics Committee co-chair, signed the letter. In it, they pledged to file an amicus brief in support of the ADDA’s stance in its litigation.
CDAA’s Proposed Brief
The CDAA’s proposed brief includes this:
“Special Directive 20-06 (20-6) created a presumptive pretrial release of criminal defendants and elimination of cash bail. Special Directive 20-08 (20-8) swept away the application of statutory sentence enhancements (including Special Circumstances for murder), although the District Attorney has twice modified his stance in the face of outcry. Special Directive 20-14 (20-14) included, in part, a blanket default prohibition against office members participating in parole hearings. Each of these directives served to suspend the application of many and varied long-standing California statutes, and in the case of bail, revoked both constitutional and statutory provisions.”
“While a District Attorney certainly has significant discretion to determine how the law might best be used to serve justice in an individual case, such discretion does not translate to an ability to usurp separation of powers lines and permit the District Attorney to undo the laws passed by the Legislature and approved by the Governor. Nor does it permit him to tie the hands of his deputies to the extent that they cannot fulfill their own individual ethical obligations as prosecutors.”
Chalfant, as of press time yesterday, had not acted on the CDAA’s request to file an amicus brief, nor on such an application by the American Civil Liberties Union.
He did, however, deny a request by “current and former elected prosecutors and Attorneys General,” declaring that the proposed brief did not comport with a court rule governing amicus briefs. He did not identify the particular flaw.
The judge also denied a fee waiver, saying that the proposed amicus is a group, not an individual.
That group was comprised of 65 persons, only four from California. Among the four were former District Attorneys Ira Reiner and Gil Garcetti.
Listed as attorneys for the current and former prosecutors were Michael Romano, director of the Three Strikes Project at Stanford Law School, and UC Berkeley School of Law Dean Erwin Chemerinsky. Chemerinski is not a member of the State Bar of California and had not sought pro hac vice standing.
The bounced brief contends:
“Now, some of Gascon’s employees are asking the court for permission to defy their new boss. But it is Gascon, as the elected District Attorney, who is responsible for policy decisions within the office and accountable to voters, not his line prosecutors….To intervene on their behalf, the court would necessarily need to intensely scrutinize purely prosecutorial functions, interfere with administration within the District Attorney’s office, invade the well-settled discretion of elected prosecutors, threaten principles of separation of powers, and thwart the will of the Los Angeles County electorate.”
“This type of judicial interference in the discretionary policy decisions of an elected prosecutor would be unprecedented, would strip the District Attorney of the inherent powers of his office, and would deprive Los Angeles voters of the leadership and policy agenda they embraced at the polls. Indeed, we could not find a single case in California where courts have overridden a prosecutor’s decision not to file charges or sentence enhancements.”
The ADDA’s reply to opposition sets forth:
“Respondents’ opposition turns on the alarming proposition that local district attorneys are vested with an unbounded executive power that is immune from judicial review, including the power to override legislative enactments and statewide voter initiatives. Nothing in the Constitution, state statutes, or case law supports such an extraordinarily expansive view of a district attorney’s authority. Respondent Gascon, like all executive branch officials in this state, is bound by legal duties that he is not free to cast aside at will—and certainly not because he perceives the social values reflected in his office policies to be more enlightened than the social values millions of California voters and the elected representatives of a co-equal branch of government enacted into law.
“The Court of Appeal cases cited by Petitioner plainly hold that the Three Strikes Law limits prosecutorial discretion by requiring that prosecutors plead and prove prior strikes in every case where such prior strikes exist: the cases do not, as Respondents contend, merely address the procedure for presenting prior strikes to the court.”
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