Major Controversy Swirls Over Gascón’s Special Directives

Wednesday, December 16, 2020

Page 1

Major Controversy Swirls Over Gascón’s Special Directives

Deputy DAs Are Distancing Themselves, Personally, From Motions the Office Obliges Them to Make; Cooley Asserts Gascón Is Worst DA in County’s History; Recall Petition Is Being Drafted

By Roger M. Grace, Editor


District Attorney George Gascón is being derided in posts on a Facebook page. A recall petition is said to be in the offing.

Consternation on the part of deputy district attorneys and judges over “special directives” issued by the new and unconventional Los Angeles County district attorney, George Gascón, is mounting, with deputies balking at orders to seek dismissal of enhancement allegations and judges rankled that they are being asked to act on cases in conformity with a county official’s policies rather than exercising independent judgment.

Some deputies, while seeking dismissal of enhancement allegations as ordered, are letting the judge know that they cannot personally attest to the legitimacy of such an action “in the interests of justice” where the facts do not support leniency. They say that they must seek the dismissals to avoid office discipline, yet distance themselves from the requests in light of their ethical obligation not to lie to the court.

A position paper on the ethical obligations of prosecutors, authored by a deputy who did not reveal his identity, is being circulated. It appears below.

There are reports of the Gascón administration going through deputies’ emails to probe possible disloyalty and gathering transcripts of proceedings to determine possible noncompliance with directives.

“There’s no transparency,” one deputy district attorney said yesterday, speaking on condition of anonymity. “There’s an environment of fear and intimidation and bullying.”

One judge said, in an email to a colleague:

“The looting, rioting, trashing and vandalizing that raged on the streets of Los Angeles continues now in the halls of the office of District Attorney.”

Gascón has instructed deputies not to seek the death penalty in any case, not to seek the posting of bail except in cases involving sexual assaults or violence, and not to move for the trial of any juvenile in adult court.

Developments have included a rebuke of Gascón by former District Attorney Steve Cooley and the formation of a recall movement.

•Cooley was Los Angeles County district attorney from 2000-2012. In 1851, the county’s first district attorney was sworn in (there were two district attorneys before that for Los Angeles and San Diego counties jointly) and Gascón is the 43rd person to head the county department.

“George Gascón proved he was the worst” of the district attorneys “within 2 minutes of being sworn in on December 7th when he issued his 9 Special Directives,” Cooley declared.

Alluding to contributions to the Gascón campaign of more than $2.5 million by billionaire investor George Soros, Cooley added:

“It has been downhill for George ‘Soros’ Gascón since 12:02 pm December 7th, 2020.”

•A recall movement has been launched. It has a page on Facebook, created on Dec. 8, the day after Gascón took office, and claims to have 18,018 total members.

The page says that the petition “is not yet out.” Non-attorney Heather Carbone, who is connected with a local neighborhood watch committee, is administrator of the page.

She recounted on Monday night that a deputy district attorney had asked that a victim be notified, under Marsy’s law, of the request to dismiss an enhancement allegation, in order to speak against the action. The post says:

“This Public Defender objected to continuing the case for that purpose. The Judge allowed the case to be continued to another day for the Victim. The Public Defender then ordered a transcript of the proceedings so she can report the DDA to Gascon’s administration.”

Carbone also reported Monday:

“Just today: Judge Daviann Mitchell….DUI with major injuries to the victim. Victim is permanently disabled. Defendant plead guilty to the DUI and admitted the GBI [great bodily injury] allegation. He was to receive Mid-Term plus the GBI allegation. Defendant was out on bond awaiting sentencing, which was supposed to be today. Defendant failed to show for court. Gascon still ordered the DA to dismiss the GBI allegation even though he voluntarily pled to it and failed to show up for court! The judge denied Gascón’s motion, and sentenced him to the max!”

•An online form for reporting deviations by deputy district attorneys from office policies, or denials of prosecution motions pursuant to such policies by judges, has been taken down.

Los Angeles Deputy Public Defender Tiffiny Townend Blacknell had dispatched an email, with a link to the form to other deputies in her office, as well as selected criminal defense lawyers. Some recipients discerned that Blacknell was working in tandem with Gascón’s staff.

Blacknell was a supporter of Gascón in his campaign for office and was named as a member of his transition team. In response to an inquiry by the METNEWS, she said in an email late Monday:

“I have no comment.”

The District Attorney’s Office has failed to respond to inquiries.

•Two deputy district attorneys in the Pomona branch, Phil Stirling and Sarika Kim, yesterday asked Los Angeles Superior Court Judge Lisa Lench to drop an enhancement allegation, but put in writing why the facts do not justify such an action, saying:

“Julian Hamori-Andrade was beaten, kidnapped and murdered on May 28, 2018. He was attacked, beaten, robbed, kidnapped and killed because the defendants believed he stole a small quantity of their marijuana. At the initial crime scene, defendants Matthew Capiendo and Hercules Balaskas beat and stabbed victim Andrade for several minutes. The victim lost consciousness. Believing he was dead, the defendants placed the victim into the bed of defendant Balaskas’ truck and drove him into the mountains to dump his body off a cliff. Defendants Balaskas and Capiendo drove the truck, while defendants Amigon, Elmendorf and Williams followed in Amigon’s Honda. During the drive to the mountains, the defendants observed victim Andrade moving in the bed of the truck.

“At the secondary crime scene in the mountains several miles up Highway 39, the defendants kicked and stomped victim Andrade until he was again believed to be dead. The victim was rolled off of the cliff. Victim Andrade was then heard making sounds that alerted the defendants that he was still alive. In an effort to again finish him off, defendant Capiendo went down the hill and continued to stomp the victim until he was again believed to be dead. Victim Andrade’s body was found on May 30,2018. The cause of death was blunt force trauma, stab wounds, and exposure.”

Each signed a motion saying that “[w]ithout further guidance from my Office, I am not able to reconcile office policy with” professional obligations. They pointed to Business & Professions Code §1385 which forbids attorneys “[t]o employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth” and requires that they “never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”

They also noted Rules of Professional Conduct, Rule 3.3 which also forbids making false statements to a court.

RESPONDING TO RECENT SPECIAL DIRECTIVES

(The following was authored by a deputy district attorney, anonymously. It is being widely disseminated.)

I. A Prosecutor Has a Duty to Be Ethical and Support the Law.

A. It Is Professional Misconduct for an Attorney to Violate the Rules of Professional Conduct or State Bar Act.

“It is professional misconduct for a lawyer to: (a) violate these rules or the State Bar Act, knowingly assist, solicit, or induce another to do so. or do so through the acts of another; ... (c) engage in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation: [or] (d) engage in conduct that is prejudicial to the administration of justice ...” (Rules Prof. Conduct, rule 8.4.)

B. An Attorney Has a Duty to Support the Law.

“It is the duty of an attorney to do all of the following: (a) To support the Constitution and laws of the United States and of this state.” (Bus. & Prof. Code. § 6068. subd. (a).)

C. An Attorney Owes the Court a Duty of Candor.

“It is the duty of an attorney to ... never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” (Bus. & Prof. Code. § 6068. subd. (d).)

“A lawyer shall not... knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; [or] fail to disclose to the tribunal legal authority m the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel ...” (Rules Prof Conduct, rule 3.3. subd. (a).)

II. A Prosecutor Has a Duty to Prosecute Filed Cases and File Prior Strike Convictions.

A. Under PC 1386, a Prosecutor Cannot Discontinue or Abandon a Prosecution for a Public Offense, Except as Provided in PC 1385.

“The entry of a nolle prosequi is abolished, and neither the Attorney General nor the district attorney can discontinue or abandon a prosecution for a public offense, except as provided in Section 1385.” (Pen. Code. § 1386)

B. Under PC 1385, Only the Court Is Authorized to Dismiss a Criminal Action, Including Any Enhancement, in Furtherance of Justice.

“Section 1385 authorizes a trial court to dismiss a prior action to further justice where the Legislature has not clearly evidenced a contrary intent. That power includes dismissing or striking an enhancement.” (People v. Luckett (1996) 48 Cal.App.4th 1214, 1218 (internal citations removed).)

“Formerly the prosecutor alone had authority to dismiss a criminal action, but with the adoption of sections 1385 and 1386 of the Penal Code, this authority was transferred to the court. ... [T]he legislature has gone so far as to guard against the likelihood of the court doing violence to the interest of justice by providing that such order can be made only ‘in the furtherance of justice.” (People v. Romero (1936) 13 Cal.App.2d 667, 670.)

C. A Dismissal in Furtherance of Justice Must Be Based on Individualized Considerations, Which Does Not Include Antipathy for the Law or a Belief the Law Is Unwise.

“Personal antipathy for the law or a belief the law is unwise is not a justification for striking priors to avoid its application.” (People v. Smith (1996) 50 Cal.App.4th 1194, 1197.)

“[A] court abuses its discretion if it dismisses a case, or strikes a sentencing allegation, solely to accommodate judicial convenience or because of court congestion. A court also abuses its discretion by dismissing a case, or a sentencing allegation, simply because a defendant pleads guilty. Nor would a court act properly if guided solely by a personal antipathy for the effect that the three strikes law would have on a defendant, while ignoring defendant’s background, the nature of his present offenses, and other individualized considerations.” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531 (internal citations and quotation marks removed).)

“Penal Code former section 1385 was amended effective January 1, 2015. (Stats. 2014. ch. 137, § 1.) That section now provides: “The reasons for the dismissal shall be stated orally on the record. The court shall also set forth the reasons in an order entered upon the minutes if requested by either party or in any case in which the proceedings are not being recorded electronically or reported by a court reporter.” (People v. Jones (2016) 246 Cal.App.4th 92, 96.)

D. Under PC 1170.12, a Prosecutor Must File All Prior Convictions for Serious or Violent Felonies, Subject to PC 1385.

“Section 969 does not itself articulate a duty to charge prior convictions but simply specifies, once a duty to charge a prior conviction is imposed by some other law. that all such priors be charged.” (In re Varnell (2003) 30 Cal.4th 1132, 1141 fii.6.)

“The three strikes law requires the prosecutor to plead and prove all prior serious and violent felony convictions. (§ 1170.12, subd. (dXl). (2).) Appellant argues that this statutory command violates the constitutional principle of separation of powers. (Cal. Const., art. I, § 3.) It does so, he argues, because the requirement that the prosecutor plead and prove all qualifying prior convictions usurps the discretion of prosecutors to decide what to prosecute, an executive function that cannot be limited by statute. The validity of appellant’s argument is dependent on the proposition that the charging discretion of prosecutors cannot be limited by law. Appellant cites no authority for that proposition, and we have found none.” (People v. Kilborn (1996) 41 Cal.App.4th 1325, 1332.)

“Notwithstanding any other law, this section shall be applied in every case in which a defendant has one or more prior serious and/or violent felony convictions as defined in tins section. The prosecuting attorney shall plead and prove each prior serious or violent felony conviction except as provided in paragraph (2). ... The prosecuting attorney may move to dismiss or strike a prior serious or violent felony conviction allegation in the furtherance of justice pursuant to Section 1385. or if there is insufficient evidence to prove the prior serious or violent conviction. If upon the satisfaction of the court that there is insufficient evidence to prove the prior serious or violent felony conviction, the court may dismiss or strike the allegation. This section shall not be read to alter a courts authority under Section 1385.” (Pen. Code. § 1170.12. subd. (d)(1), (2).)

E. A Court Cannot Strike or Dismiss a Special Circumstance Allegation That Was Admitted or Found to Be True.

“Notwithstanding Section 1385 or any other provision of law. a judge shall not strike or dismiss any special circumstance which is admitted by a plea of guilty or nolo contendere or is found by a jury or court as provided in Sections 190.1 to 190.5, inclusive.” (Pen. Code. § 1385.1.)