Gascón Crosses the Line

Tuesday, May 3, 2022

Page 8

Perspectives (Column)

By Roger M. Grace

This email was dispatched to Los Angeles County deputy district attorneys in Pomona on Friday:

Blanket “papering” of a judge is nothing new. The Office of District Attorney has done it. The Public Defender’s Office has done it.

What’s new about Friday’s command—that a deputy D.A. must file a disqualification motion under Code of Civil Procedure §170.6 every time a case is assigned to Los Angeles Superior Court Judge Rob B. Villeza—is that prosecutors were told to proclaim under penalty of perjury that a judge is biased against their client, the People, with no inkling on their part as to why he should be so branded.

In the past, deputies have well understood the office’s perceived need to bump a judge from criminal cases. They have known what words and actions over a period of time triggered a decision to affidavit the judge on a routine basis and, as a general rule, have not had compunctions about participating in the effort.

But this is different. DDAs are expected to assert under penalty of perjury that Villeza is biased against the People although there is a strong indication to the contrary.

★

What was immediately assumed by some on Friday was that the decision to “ding” Villeza stemmed from his May 24, 2021 ruling in People v. Raymond Gonzalez. As it turned out, it didn’t—well, at least not directly. What matters is that his actions in that case belie any suggestion of an anti-prosecution bias on his part and point to the bogus nature of a frail justification now being offered.

The prosecution in Gonzalez was instituted back when the DA’s Office was a pro-prosecution agency under D.A. Jackie Lacey. Gonzalez was charged with two counts of murder. Alleged were a special circumstance and a gang enhancement.

One of the several “special directives” Gascón issued on Dec. 7, 2000, the day he took office, was No. 20-08, mandating that “sentence enhancements or other sentencing allegations…shall not be filed in any cases and shall be withdrawn in pending matters.” In obedience to that directive, a deputy moved for an order blotting out the sentencing allegations in Gonzalez’s case, and Villeza on Jan. 19, 2021, obliged.

Another judge issued a preliminary injunction barring enforcement of Special Directive 20-08 and other Dec. 7 edicts. His decision, of course, had no effect on orders already entered, but brought matters into focus.

A motion was made on behalf of family members of the victims in the Gonzalez case to vacate the Jan. 19 order. That motion was made by former District Attorney Steve Cooley, victims’ rights lawyer Kathleen Cady, and Long Beach practitioner Brent Ferreira.

Villeza came to realize that a statutory requisite for the order he issued in Gonzalez’s case—that the interests of justice be served by excising sentence-boosting allegations—did not exist. He declined to recognize standing on the part of family members of the decedents but, acting sua sponte, vacated his order, saying:

“[A]s pointed out by the prosecutor in this case, and as established by the findings after preliminary hearing, the evidence described in the People’s motion amply supports the special circumstance and sentence enhancement allegations. The defendant is accused of shooting to death two men while they were sleeping, to steal money one of the victims collected in an insurance settlement. He then used the gun to carjack a mini-van to transport and dump the bodies in the desert. The People offer no mitigating facts or personal circumstances of the defendant to support the dismissal motion.”

(The defendant, with the support of the DA’s Office, sought a writ challenging the sua sponte order. Div. Five of this district’s Court of Appeal denied relief, saying there was an adequate remedy by appeal should there be a conviction.)

★

The action by Villeza in reinstating the special circumstance and gang enhancement allegations plainly evidences a lack of bias on his part against the People and demonstrates a commitment to adhering to the law. As of Friday, when the directive was issued by Michael Yglecias, head deputy in the Pomona Courthouse (East District), an assertion of a general bias on the part of the judge against the prosecution could not reasonably have been credited, nor can it be now.

Indeed, it is not Villeza who is biased against the People; it is Gascón, a champion of criminal defendants and inmates.

Deputies on Friday were commanded, in effect: “Thou shalt state under penalty of perjury that Villeza is biased—and never mind why. Just do as you’re told.”

If a DDA were to protest, “I cannot truthfully make an allegation of bias,” it is doubtful that he or she would be ordered to execute a declaration, anyway—that would amount to subornation of perjury, in violation of Penal Code §127. Even Gascón can, we must assume, grasp that.

However, it is probable that any deputy voicing such a protest would be deemed to be out of favor with the administration and would suffer retaliation. Oh, yes, Gascón does retaliate. There have indeed been instances of that.

★

It now emerges that the Gascón regime is relying for its affidaviting order upon recent actions by Villeza in a rape case. The judge made a ruling that the office didn’t like and allowed argument by the defense to which exception was taken.

Under the circumstances—including the action Villeza took in Gonzalez against sentence-minimization, a courageous one—the conclusion is inescapable that the purported outrage by the District Attorney’s Office over the judge’s rulings in a single case is pretextual. The goal is not to bump Villeza from presiding over criminal cases because he is pro-defense, but to get rid of him because he defied a policy, one that has been judicially declared to be infirm, pronounced by a power-thirsty district attorney who lacks tolerance for opposition.

A former veteran deputy D.A. advises:

“As aggrieved as...Yglecias might be about a judge giving a strange ruling/instruction, it is hard to believe he would seek permission and get approval of blanket affidaviting in all cases. Certainly, Yglecias would be justified in affidaviting Judge Villeza on future sex crimes.”

The ex-prosecutor says:

“[T]he notion that Yglecias sought blanket affidaviting due to an aberrant ruling is inconsistent with office policy and entirely consistent with retaliation.”

Below is a detailed discussion by the former DDA. It includes the recitation that blanket affidaviting traditionally has been “limited to situations where that judge can be shown to have ruled irrationally or erroneously over a period of time, in a number of cases,” and adds:

“I am not aware of this occurring where a decision in a single case resulted in a blanket paper.”

★

Here’s the former deputy’s factual explanation and commentary:

Although the email ordering a “blanket papering” of Judge Villeza is authored by the head deputy of the Pomona Branch Office, the email nonetheless has the stench of Gascón all over it. On a bookshelf somewhere in Gascón’s bunker, there is likely a dust-covered copy of the Legal Policies Manual (“LPM”), a 273-page set of rules governing the operation of the DA’s Office. A failure to follow the LPM is grounds for discipline.

LPM Section 11.15.02 is entitled “Peremptory Challenge in All Cases or Challenge for Cause” and regulates Friday’s directive stating:

“The decision to file a peremptory challenge against a judge in all cases, or a challenge for cause, requires Chief Deputy approval. To obtain approval, a Head Deputy or Deputy-In-Charge must forward a memorandum to the Chief Deputy through the chain of command explaining the reasons for the challenge.”

It is, therefore, logical to conclude that this directive was approved by Gascón’s second in command (the Chief Deputy); indeed, it is highly likely that the directive originated from Gascón via the Chief Deputy, as the likelihood of the head deputy of the Pomona Branch submitting a memorandum seeking the blanket papering of Judge Villeza is remote. After all, what reason or reasons for the challenge could be stated other than the obvious, retaliation for refusing to “bend the knee” to Gascón ‘s directives?

Gascón ‘s goal appears to be twofold. On a micro level he will punish Judge Villeza by “papering him out of the building,” in other words, because other judges will now have to take the cases that should be heard by Judge Villeza, this puts a burden on those other judges, this in turn, forces the Superior Court to transfer Judge Villeza to an assignment where the District Attorney’s Office does not appear, perhaps a misdemeanor court where the City Attorney appears or a Civil assignment. It might also involve a little freeway therapy. On a macro level, Gascón is sending a message to any other judge who defies his directives—“Obey my directives or suffer the same fate as Judge Villeza.” Make no mistake, Gascón has deployed the nuclear option in response to Judge Villeza’s defiance. I sincerely hope the Superior Court does not consider reassigning Judge Villeza anywhere at all, for to do so would be seen by many as bending the knee to Gascón, and thus create a dangerous, toxic precedent.

That is not to say that the exercise of a blanket paper by the District Attorney’s Office is without precedent. There most certainly have been situations where a judge has been blanket papered following the procedure laid out in LPM 11.15.02. However, those are limited to situations where that judge can be shown to have ruled irrationally or erroneously over a period of time, in a number of cases. I am not aware of this occurring where a decision in a single case resulted in a blanket paper.

As for Gascón’s foolish attempt to hide behind a head deputy in launching this directive, it might give him plausible deniability with certain editorial boards that supported his campaign, and will likely raise the spirits of the coterie of embedded deputy public defenders who are currently posing as prosecutors at his behest. However, so far as everyone else is concerned, it is seen for what it is—a desperate, ill-conceived, vindictive move to silence opposition, and a clear sign that Gascón knows his days are numbered.

Gascón’s exercise of the nuclear option in this matter appears to have much in common with despotic leaders who use whatever means are available to achieve their ends. He is already losing the war with the deputy district attorneys who have succeeded in using the legal system to prevent his retaliatory transfers, at a huge cost to the County. So Gascón now ups the stakes and is going after the judiciary. Gascón’s wet dream must surely be to intimidate and control the judges who stand in his way. Long ago it was said that “The only thing necessary for the triumph of evil, is for good men to do nothing.” Apart from fixing the gender thing, that philosophy holds true today. Gascón cannot be allowed to triumph.

As to the ex-DDA’s assertion that papering has not stemmed in the past from a single judicial action, former Los Angeles District Attorney Steve Cooley remarks:

“That is accurate. If there was concern about a particular judge’s rulings and/or behavior, a ‘book’ would be kept and any concerning issues would be documented. The Head Deputy would report the situation to and thru the chain of command and request permission to authorize the filing of 170.6s in all criminal cases assigned to the judge. This was a rare occurrence. The situation was often avoided by someone high up in management speaking with the PJ and the judge in question was transferred. Filing of ‘blanket’ affidavits was done very commonly by deputy public defenders. I corroborate the quotes of the former DDA referenced.”

A Los Angeles Superior Court judge who is a former deputy district attorney says:

“I can confirm that what the former deputy DA stated was the policy in the DA’s office and blanket affidaviting was rarely utilized. Judge Villeza is an excellent judicial officer and I’m confident his rulings are well reasoned, fair and impartial.”

★

Adding yet more support to a suspicion that the decision to paper Villeza was not triggered by his rulings in one particular case is this description of procedures in the D.A.’s Office:

As a former deputy district attorney with Los Angeles County and a current Superior Court judge in Los Angeles County, I am familiar with the rules and practices of the filing of paper under California Code of Civil Procedure section 170.6.

It commences when an attorney files a declaration, under penalty of perjury, that a particular judge is prejudiced against a party or an attorney or their interests.

In the Office of the Public Defender, their deputies have discretion to file paper in any case and against any judge of their choosing. The disqualification would only apply to any case being handled by that particular deputy. Deputy public defenders use this affidavit sometimes casually when they feel a judge didn’t rule in their favor or to intimidate a judge into ruling favorably for them in the future. In contrast, deputy district attorneys do not have unfettered discretion to file an affidavit pursuant to section 170.6. According to the Legal Policies Manual, before a single judge may be the subject of paper, the deputy would need to solicit the approval of the head deputy or deputy in charge for a one time disqualification. The manual also requires the approval of the Chief Deputy for the filing of a blanket affidavit against any bench officer. Because a section 170.6 requires an attorney to state, under penalty of perjury, that a judge is prejudiced, the Office of the District Attorney took the filing of paper very seriously, hence, the procedures in the Legal Policy Manual needed to be strictly followed.

In my entire legal career, only once do I remember a judge being the subject of a blanket paper. I still remember the memo making the announcement: “Judge Dunn is DONE.” The decision to file blanket paper against Judge [William] Dunn [a Long Beach Municipal Courtjudge sitting on assignment] was arrived at after careful consideration for multiple unfavorable rulings against the People over an extended period of at least one year. In my career, no judge was ever taken out over a single ruling. I spoke with my former supervisor, now retired, a well respected member of the administration of Los Angeles County District Attorneys Office and he too could not remember any other judge who was the subject of a blanket affidavit as it was very rarely deployed.

The question of suborning perjury by having a DDA file a CCP section 170.6 on behalf of the District Attorney is a little more difficult to answer. On the one hand, a lawyer must state, under penalty of perjury, that a judge is prejudiced. If this lawyer does not believe that judge is prejudiced, then it appears to be perjurious. On the other hand, when a DDA files the declaration on behalf of the District Attorney, it is the District Attorney who feels that the judge is prejudiced; the DDA is only filing the affidavit in his representative capacity on behalf of the District Attorney. I do not believe this to be suborning perjury.

If it is true that Judge Villeza is now the subject of a blanket paper over a single ruling, this practice in the Office of District Attorney for Los Angeles County is likely unprecedented. It is most ironic and disturbing that a well respected judge who followed the law by reinstating the special circumstance allegations, a ruling traditionally considered favorable to the People, has now been taken out by the People’s representative.

On Sunday, I sent an email to Gascón, Yglecias, and the DA’s Office publicist seeking comment. No response.

The Association of Deputy District Attorneys on Feb. 22 announced that with 83.3 percent of its more than 800 members participating, 97.9 percent of them voted to support the recall of Gascón. Signatures are being collected county-wide on recall petitions.