Metropolitan News-Enterprise


Tuesday, August 31, 2021


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Cooley Raps Gascón Over His Amicus Brief in Supreme Court in Support of Defendant


By a MetNews Staff Writer


Former Los Angeles County District Attorney Steve Cooley, whose office in 2004 obtained a death sentence for double-murderer Donte McDaniel, has taken to task the county’s present chief prosecutor, George Gascón, for joining in an amicus curiae brief in support of that inmate, whose novel legal proposition, spurned last week by the California Supreme Court, would have resulted in the sentences of about 700 persons being upset.

McDaniel, who was also convicted on two counts of attempted murder and possession of a firearm by a felon, asserted that jurors at the penalty phase in a capital case can recommend the death penalty only if, in making the requisite finding that aggravating factors exist, unanimously agree on which factors came intro play, and make the finding under a reasonable doubt standard.

Joining with Gascón in the brief were the district attorneys of Contra Costa, San Francisco, Santa Clara and San Joaquin counties, as well as former Los Angeles District Attorney Gil Garcetti. Gascón and Garcetti were represented by counsel and the others represented themselves.

Gascón participated in the Oct. 26, 2020 brief—filed eight days before the election in which he toppled then-District Attorney Jackie Lacey—in his capacity as former San Francisco district attorney.

Cooley’s Comment

Cooley said on Saturday, in reference to the brief:

“This undertaking is absolutely inconsistent with the proper and statutory role of a public prosecutor.”

Alluding to Government Code §26540 which provides that “[a] district attorney shall not during his incumbency defend or assist in the defense of, or act as counsel for, any person accused of any crime in any county,” he said:

“Amazingly, the person who would ordinarily enforce the law against a prosecutor representing a defendant is the very person violating that proscription—George Gascón.”

He added that the Los Angeles County Board of Supervisors “is funding this lunacy and other instances of Gascón’s bizarre personnel decisions, retaliation law suits, hostile work environment settlements, and on and on.”

Judges Express Views

Two Los Angeles Superior Court judges also provided comments, each on condition of anonymity.

“I can envision some unusual circumstances in which” it might be “appropriate for a district attorney to join in an amicus brief in support of a criminal defendant,” one judge remarked, giving as examples supporting “a petition for compassionate release, factual innocence, etc.,” but added: “This current effort, though, doesn’t pass the smell test.”

Another jurist contended that “what Mr. Gascón is doing is a disgrace.”

Focusing on the overall performance of the district attorney since he was sworn in on Dec. 7, the judge said:

“What he is doing undermines our system of justice based on the adversarial system. He essentially is acting as a public defender in the position of the DA. Moreover, his hiring of Public Defenders into the DA’s office is completely unacceptable.

“ I wonder if he would continue to have his opinion of the justice system if the Board of Supervisors appoint a DA as the Public Defender? He is absolutely being unethical but I expect nothing more from a man who never practiced law.”

Sometimes Justified

 Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, who filed an amicus brief calling for rejection of McDaniel’s argument, said that support by prosecutors of “a position of a defendant in a particular case, it happens now and then, and sometimes it is justified.” He continued:

“The Attorney General agreed with the defendant in the U.S. Supreme Court in Lange v. California this term, and the Supreme Court agreed 7-2. I cannot say as a blanket rule that agreeing with the defendant is always wrong for a prosecutor. It is not ‘improper’ in the sense of violating any ethics rule.”

“What is wrong in the McDaniel case, in my opinion, is supporting a murderer with a far-fetched legal theory to create a new, pro-murderer rule that the California Supreme Court has considered and rejected many times over decades, a rule that would overturn the well-deserved sentences of hundreds of murderers. That is supporting injustice rather than justice.”

Amici’s Interest

The brief in which Gascón joined says:

“Each of the amici has a strong interest in the issues before this Court. As current and former district attorneys, each amicus has experience proving cases beyond a reasonable doubt and persuading a jury to unanimously convict. They believe these are the appropriate standards to apply in the penalty phase in a capital case, where the issue is one of life or death.”

In identifying Gascón, it says:

“While he began his career as a supporter of the death penalty, Mr. Gascon’s views on the death penalty have evolved over his lengthy career in law enforcement. As a result of his experience, he came to believe that the death penalty does not make communities safer. Instead, he found that it drained limited public safety resources that could be better used on programs that actually improve the quality of life and promote safety for everyone. He also became deeply troubled by the arbitrary way capital punishment was applied in California, and its disproportionate impact on communities of color and poor people. Mr. Gascon did not seek the death penalty during his tenure as the San Francisco District Attorney.”


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