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In My Opinion

Gascón, Defended

By David D. Diamond

(The writer is a trial attorney and is a State Bar certified criminal law specialist. He is an adjunct professor in the College of Liberal Arts at Woodbury University. Diamond was previously a member of the Burbank Police Commission and served for two years as its chair.)

It is said that a good prosecutor gets a conviction and a great one gets justice. That appears to be the intent and desire of George Gascón. While the methodology is rare, it is not new. The concept of rehabilitation over incarceration for certain crimes has been successfully utilized in many states across the country. The current hysteria is also misplaced, as no hardened criminals have been let out to roam the streets. However, Gascón’s team has had a difficult time conveying the message as he has placed loyalists and not necessarily the most qualified in positions of authority. This does not eliminate the “sky is falling” cries from line prosecutors or uninformed members of the public.

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For example, Deputy District Attorney Jonathan Hatami has all but announced his candidacy for the job while speaking to the media. His wife is in law enforcement, and this would certainly remove his ability to be impartial and investigate police shootings, which is why Gascón was elected in the first place. Gascón has promised to take a different approach, strike some enhancements, treat juveniles like the children most of them are, and remove gang enhancements. The blowback has been fierce and strong. Prosecutors, both current and former, like former union head Marc Debbaudt, are claiming the “defense attorneys run the D.A.’s office now, criminals will be owning the streets, and there will be rats reporting prosecutors to their bosses.” Much of this is nothing more than loud noise.

Gascón is a former police chief and district attorney. His second in command is a prosecutor, albeit too young for the job. He spent his life protecting and serving the community. Since Gascón took office, I have been in court to watch numerous bench officers summarily deny the prosecutor’s requests to strike an enhancement or dismiss a charge. One wonders if this is judicial overreach, judicial activism, or simply adherence to the rule of law. I recall when former DA Steve Cooley changed the way three strikes were prosecuted to make sure you did not go to prison for life for stealing a slice of pizza.

At that time, prosecutors did not complain, go to the media, or call out their boss. They simply did what was in the “interests of justice.” Judges, for that matter, also realized the harshness of the Three Strikes Law for non-violent offenders and went along with the prosecutor’s motions (even though some appellate courts found it illegal to do so).

Currently, however, prosecutors are claiming it is unethical to do so, as it was under the Cooley regime, but ironically they did not complain then. The Three Strikes Law was subsequently a hot topic in California. Proposition 66 ultimately failed after scare tactics and Cooley’s SB 1462 died in committee, which ended his political career as well.

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So here we are. Change is before us, and what are the next steps? Many prosecutors have told defense attorneys that the new policy “is not law” which is ironic being the countless times a prosecutor has rejected a case resolution citing “office policy and directives.” There is surely some level of hypocrisy currently because anyone that has practiced criminal justice for more than a minute knows that a few, not all, but some prosecutors add enhancements and tack on charges to use as a negotiation tool to obtain a plea bargain later down the road.

Mr. Gascón is also reconsidering the issue of bail. Bail has systemically and tragically hurt people of color and been used to force them to take a plea bargain just to get out of custody and return home to their jobs and families. Gascón is not changing the law but merely fixing decades of abuse in the bail system. Society must also balance the rights of victims and their families.

The fairly recent Marcy’s Law has given victims well overdue rights to be a part of the process. Many prosecutors are refusing to follow their new boss’ directives by citing Marsy’s Law.

Victims should absolutely be informed about any changes with the case status. However, this also brings about some irony because I have been in court when victims ask the court to dismiss a case because they do not want to press charges and are soundingly rejected.

Victims are also dragged into court by way of a prosecution subpoena to testify, yet no one even whispers about Marcy’s Law at that moment.

So where does that leave us as a community? Our system of criminal justice may be the best in the world but at the same time, it cannot continue to deteriorate. Defense attorneys are accused of filing frivolous motions and delaying the process, prosecutors are accused of knowingly putting a dishonest peace officer on the stand, and some judges are accused of still being a prosecutor.

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I have personally litigated cases where exculpatory evidence and innocence was so overwhelming, but the prosecution’s response remained, “Let’s just let the jury decide.” So, if the argument is ethics, let us make sure we are being true to ourselves.

The bottom line is that Gascón was elected to bring change and he did not hide what his platform was. Prosecutors represent the “People” of the State of California, and the people have spoken by electing Gascón over the remains of the Lacey/Cooley regime. Let us, as a legal community, at least give the policy a fair chance at succeeding.

It is not perfect, but with the pendulum resting so far to one side for as long as I can recall, maybe it must swing to the other side to remember what the middle looks like.