Los Angeles Times Defends Gascón With Flawed Arguments

Tuesday, February 2, 2021

Page 8

EDITORIAL

Los Angeles Times Defends Gascón With Flawed Arguments

By a MetNews Staff Writer

The Los Angeles Times on Friday sided with Los Angeles County District Attorney George Gascón in his battle with his deputies who overwhelmingly oppose his “soft on crime” directives. Its editorial, bearing the headline, “Let Gascón bring in reforms,” is stuffed with mistruths.

Before getting to the content of the editorial, we take issue with the headline. A “reform,” by definition, entails an improvement—not merely a change.

We don’t know that it is a “reform”….

•To defy the statutory mandate that all priors be charged for purpose of the Three Strikes Law (subject to being vacated by the court “in furtherance of justice” or because it can’t be proved), and instead decreeing that none shall be charged;

•To order deputies to move in every case in which a prior or other sentencing enhancement was previously alleged that the allegation be stricken, representing to the court that a statutory basis exists even where no circumstances in the case warrant such a contention and the deputy believes the representation to be false.

•To bar deputies from attending parole hearings, ignoring the need of victims for the comfort of having a skilled lawyer act as their surrogate, and to forbid deputies from ever opposing parole in writing, no matter how egregious the inmate’s offenses were and no matter how great a danger would be posed to society if the miscreant were released.

•To seek to intimidate bench officers into granting motions to strike sentence-boosting allegations by ordering that deputies snitch on those who denied such motions and then disallowed the filing of an amended pleading with enhancement allegations omitted. The plan—which Gascón quickly abandoned when it became clear he would not be able to bully the judiciary into submission—was to blacklist non-cooperating jurists through blanket affidaviting, thus forcing their removal from the criminal courts.

These are not, in our view, actions to effect “reforms”; rather, they are instances, as we see it, of dereliction of duties.

“O

n Nov. 3, Los Angeles County voters elected George Gascón to be their new district attorney, and it wasn’t particularly close,” the Times editorial declares. “Gascón won 53.5% of the vote, which is a remarkable feat for a candidate challenging an incumbent, in this case two-term Dist. Atty. Jackie Lacey.

“Gascón prevailed on the strength of his campaign to reform the criminal justice system by targeting historic inequities and excesses.”

That’s malarkey. Gascón won largely on the strength of massive campaign spending in support of his candidacy, the precise extent of which is difficult to tally, given that expenditures were made by various support efforts. They included “CA Justice & Public Safety: Committee to Support George Gascon for Los Angeles District Attorney” (which donated $2,421,800 to “Run, George, Run: George Gascon for LA DA 2020”—with that group, in turn, curiously, shifting $2,170,000 to CA Justice & Public Safety).

Among those giving money to CA Justice & Public Safety was one George Soros, not a concerned citizen residing in Los Angeles County, but a left-wing New York billionaire who is on a quest to buy local elections throughout the nation in order to put into office those who share his political philosophy. His three donations to CA Justice & Public Safety added up to $2.45 million.

Others unconnected with the legal profession or the justice system pumped money into the effort to elect Gascón—including Wilmot Reed Hastings Jr., co-founder and co-chief executive officer of Netflix, and his wife, film producer Patricia Quillin, who donated more than $2 million.

Too, Lacey, an African American, was portrayed as an enemy of the African American community because she did not abandon her obligations of office by prosecuting white police officers who had fatally shot unarmed blacks under circumstances where an unreasonableness in the perception of the officers that they were in peril could not be demonstrated. Analyses in writing by members of her staff concluded that criminality was doubtful, and her own reviews of the evidence confirmed that prosecutions would be unjustified. While it cannot realistically be doubted that Lacey is acutely aware that black lives do matter, a gross misperception of her was fabricated, diminishing her political base.

Another factor was an outright fraud Gascón perpetrated on voters in the form of his running as the “Democrat for L.A. District Attorney.” Nearly half the voters in the county are registered as Democrats (46.3 percent), outnumbering Republicans (24 percent) almost 2-1 (with other voters being independents or members of minor parties). Although county elections have long been nonpartisan and voters in 2010 approved Proposition 14 which ended partisan run-offs in California (except for presidential elections), Gascón created the illusion that he was the nominee of the Democratic Party, implying that Lacey, a Democrat, was the Republican contender.

he Times portrays a victory of a challenger over an incumbent district attorney by 53.5 percent of the vote as “remarkable.” Are we to accept that simply because the Times says it’s so? In point of fact, the last time a D.A. in Los Angeles County was defeated by a rival was in 2000. Then-Deputy District Attorney Steve Cooley toppled District Attorney Gil Garcetti with 63.7 percent of the vote—meaning that the then-current office-holder garnered only 36.3 percent of the ballots. Lacey, by contrast, acquired 46.5 percent of the vote.

In 1996, Garcetti defeated incumbent Ira Reiner, attracting 81.64 percent of the vote (but there was the unique circumstance in that race of Reiner, having been forced into a run-off, giving up the fight, virtually conceding).

The time before that when a D.A. was defeated in this county was in 1984. A highly able district attorney, Robert H. Philibosian (appointed by the Board of Supervisors to replace John Van de Kamp, who took office in 1983 as state attorney general), was trounced by then-Los Angeles City Attorney Ira Reiner. Reiner won in the primary largely because he, like Gascón, ran for the non-partisan office as a Democrat, and that year’s primary attracted a less-than-normal percentage of Republican voters because it was a foregone conclusion that President Ronald Reagan, a Republican, would win the state’s GOP nod; Democrats, by contrast, had choices.

While Reiner drew 52 percent of the vote—slightly less than Gascón’s 53.5 percent—he had two opponents; Philibosian received 41.5 percent and Deputy District Attorney Hyatt Seligman attracted the remaining crumbs. So, there was a 10.5 percent gap in the votes between Reiner and the incumbent; there was a seven percent difference last year in what Gascón and Lacey pulled.

In 1940, John F. Dockweiler defeated incumbent Buron Fitts, attaining 60 percent of the vote.

It’s true that Gascón attained a higher percentage of the vote in unseating an incumbent than Alex Villanueva did in 2018 in defeating Sheriff Jim McDonnell—winning with 52.9 percent—but that difference, of less than one-half a percent point, hardly justifies the Times’s proclamation that Gascón’s feat was “remarkable.”

Nor is it “remarkable” in light of the election results the last time county supervisors were defeated: in November 1980. Deane Dana captured 52.81 percent of the votes in his run-off with incumbent Yvonne Burke, and Michael D. Antonovich racked up 55.21 percent in his challenge to Supervisor Baxter Ward.

What is remarkable is not the margin of votes by which Gascón prevailed over Lacey but the extent to which the Times will go in defending a candidate it endorsed who, in record-short time for a politico, proved himself utterly unworthy of the office to which he was elected.

he Times editorial says Gascón “had a record of achievement as the district attorney of San Francisco, and he was part of a prosecutorial reform wave that has elected district attorneys in Chicago, Boston, Philadelphia, St. Louis, Baltimore and numerous other jurisdictions across the nation,” adding:

“He and Lacey articulated vastly different approaches to prosecution in a series of preelection forums and debates, and the race and the issues were covered closely by The Times and other news outlets. Voters here saw their choices, and by a clear majority they chose Gascón.”

Gascón had a record of functioning as district attorney of San Francisco, but we know of no justification for the description of it as a record of “achievement.”

Neither from Gascón’s policies as San Francisco D.A. nor from his campaign pronouncements could voters have possibly anticipated the broad and unconventional—indeed extremist—“special directives” Gascón would issue on Dec. 7, his first day in office.

Gascón was San Francisco’s district attorney when California voters in November 2012 approved Proposition 36—labeled “A Change in the ‘Three Strikes Law’ Initiative”—which provided that a third offense had to be, generally, “a serious or violent felony” in order to trigger a mandatory minimum sentence of 25 to life. It liberalized the law, so that consequences of a third strike would not be activated by the mere theft of a loaf of bread (a hypothetical often used in criticizing the initial 1994 legislation). But it remained that there would be a severe consequence where a lawbreaker proved to be incorrigible by committing a third offense of a substantial nature. In an inter-office memo, Gascón declared: “The Office shall closely adhere to provisions of California Proposition 36 (November 2012 ballot).” The memo set forth, with particularity, the provisions so that there would be strict adherence.

In his campaign, Gascón did reveal his opposition to the death penalty and to money bail—thus alerting voters that his views do depart from those they had expressed at the polls. He did not make it known, however, that he would, on Day One of his term (when he issued nine “special directives”), forbid any allegations of strikes, special circumstances, or other sentence enhancements. (He backed down, to a small extent, on Dec. 18 in allowing for the possibility of seeking “enhanced sentences in cases involving the most vulnerable victims and in specified extraordinary circumstances”—but excluding the possibility of certain allegations including strikes, gang enhancements, or special circumstances where it would lead to a life sentence without possibility of parole.) Gascón did not hint in his campaign that he would order that all enhancements that were alleged when Lacey headed the office be withdrawn or that he would take the stance that judges, although statutorily vested with discretion as to whether to permit amendments, were obliged, by virtue of the separation of powers doctrine, to accede to his wishes. The candidate did not signal that the “default policy” would be to “support in writing the grant of parole for a person who has already served their mandatory minimum period of incarceration” or that where “a person represents a ‘high’ risk for recidivism,” the deputy could, in a letter, “take a neutral position on the grant of parole.”

The Times says that voters “saw their choices” and elected Gascón. But they did not “see” the full picture. Would voters have opted for that candidate if he had told them he would not oppose parole even if the parole-seeker were the likes of Charles Manson? That he would defy a mandate of the Three Strikes Law to charge all strikes even though courts of appeal have upheld the validity of that requirement? That he would intrude upon judicial independence by seeking to bully judges into acceding to his program?

Not likely.

ore claptrap ensues in the Times editorial in insisting that the electorate embraced “Gascón’s vision of criminal justice reform,” and it derides the Association of Deputy District Attorneys (“ADDA”) for supposedly seeking to keep the voters’ wishes from being carried out by suing to block enforcement of some of the D.A.’s special directives. A hearing on a preliminary injunction is slated for today at 1:30 p.m. in Department 95 of the Los Angeles Superior Court’s Mosk Courthouse.

The editorial depicts the deputies as sore losers because Lacey, to whom they were loyal, was defeated, and because they now have to do things differently than before. It observes that the ADDA “oddly, seeks to minimize one of the cornerstones of American jurisprudence: prosecutorial discretion,” saying that discretion as to whether to allege enhancements is vested in the “elected district attorney, not in each courtroom deputy.”

While the D.A. does have the final say as to the office’s position on sentencing in each case, that official surely does not have the prerogative of instructing deputies to violate professional ethics by representing to a court that there’s cause in the case to strike enhancements when there is no basis for doing so other than to comply with the Gascón Manifesto.

The editorial continues:

“The union also objects to Gascón’s order not to seek additional prison time against repeat offenders under the ‘three strikes’ law. That issue may seem slightly thornier at first glance because of statutory language stating that prosecutors ‘shall’ plead and prove each previous serious or violent felony, but prosecutors have long preserved their discretion to file or decline to file ‘strikes’ in the interests of justice as they see it. That’s a judgment that properly falls to Gascón, not his deputies.”

That misses the point that provisions in two Penal Code sections—1170.12 and 667—remove any discretion from the prosecuting agency. The provisions say that “[t]he prosecuting attorney shall plead and prove each prior serious and/or violent felony conviction” unless a court strikes the strike “in the furtherance of justice” or because “there is insufficient evidence to prove” it.

There’s no “judgment that properly falls to Gascón.” There’s a statutory mandate, one that has been upheld by decisions of courts of appeal.

The Times, to its discredit, seems to countenance a purported nullification of the judicially approved legislative dictate by means of a district attorney’s fiat. That’s OK, it rationalizes, because there have been deviations in the past, in individual cases, from what is statutorily required. The ADDA’s reply brief, filed last week, aptly remarks that this argument, also put forth in Gascón’s opposition to a preliminary injunction, is “the equivalent of claiming that the speed limit on the freeway is not actually 65 miles per hour because drivers often exceed that speed.”

oncluding the editorial are these words: “The people of Los Angeles County chose Gascón to represent them. Their choice should not be undone by disappointed deputies in his office or others around the state and nation who resist the increasingly loud demands for criminal justice reform.”

The ADDA is not seeking to undo the voters’ choice of Gascón. It is seeking to have the Superior Court require that he abide by the law and not seek to compel deputies to violate professional ethical requirements.

A recall group, on the other hand, does want the choice to be “undone.” It wants voters, themselves, to rectify their mistake in electing Gascón last November by tossing him out of office and replacing him with a person who is fit to serve. It is an effort by amateurs, who might lack the finances and the savvy to succeed, but they are determined—indeed feisty—and 38,712 subscribers to their Facebook page have emerged.

They just might achieve a conquest. We hope so.