LA prosecutors say they fear punishment for talking to media

After at least a dozen judges defied some of Los Angeles County District Attorney George Gascón's charging policies during his first week in office, some outside attorneys are now exploring other ways to prohibit him from enforcing his sweeping directives altogether.

Samuel Dordulian, a former Los Angeles County prosecutor who now works in private practice in Glendale, said his law office is considering filing a request for an injunction against Gascón's policies and that in the meantime he would offer legal assistance to prosecutors who fear retribution for not following the orders.

Prosecutors have told the Daily Journal that they can't talk to the press about policy matters without being reprimanded, that they get castigated by some judges if they comply with Gascón's policies, while they fear for their careers if they defy them. The Deputy District Attorneys Association of Los Angeles, which actively and vociferously supported incumbent DA Jackie Lacey in the election and issued many news releases criticizing Gascón, has been silent since Lacey conceded the election.

Adding to a string of judicial rejections that began as early as Tuesday last week, the same day Gascón's directives took effect, Superior Court Judge Daviann L. Mitchell on Monday denied a motion from a deputy district attorney to dismiss all enhancement charges in a drunk driving case that left the victim permanently disabled. Despite the defendant having voluntarily pleaded guilty to drunk driving and a great bodily injury allegation, and failing to appear in court Monday, prosecutors said they were still ordered to dismiss the enhancement charges against the defendant. But Mitchell refused and imposed the maximum sentence.

In a similar case, Dordulian was in a Norwalk courtroom on Friday representing the family of a dead drunk driving victim when he said he overheard Gascón's special advisor, Mario Trujillo, ask the defense attorney for a transcript of the hearing before it began. Prosecutors were also directed in that case to ask the judge to dismiss special allegations of great bodily injury and driving under the influence of drugs or alcohol causing injury to one or more people against the defendant, Austin Redden, 21.

In 2019, Redden, who has two prior drunk driving convictions, was charged with driving under the influence of drugs and crashed into a tow truck, causing his vehicle to flip several times. One person, Jacob Scianni, 20, died, and two other passengers were severely injured.

According to Dordulian, Trujillo did not say a word to any of the deputy DAs in the courtroom and spoke loud enough to the defense attorney so they could hear his request for a transcript.

"It was a message being sent to his prosecutors, 'Don't stray away from what I told you to do. If you do, there will be consequences,'" Dordulian said at a news conference Monday.

The Daily Journal asked the DA's office for a response to allegations that Trujillo intentionally threatened prosecutors in the courtroom on Friday and whether prosecutors can be disciplined for talking to the news media, as some deputies have said.

Max Szabo, a DA spokesperson, declined to comment on specific incidents. But he said, "If you're asking me if Mr. Gascón intends to ensure that the directives given are followed, the answer is yes."

Over the weekend, a document surfaced that appeared to be a form that can be used to report deputy district attorneys who don't comply with Gascón's directives to management for non-compliance.

Several prosecutors told the Daily Journal that it was sent from Gascón's transition team to the public defender's office. However, Szabo said Monday that the document did not originate in Gascón's office. Requests for comment from the public defender's office were not immediately returned.

Titled, "Issues with Non-Compliance with DA Directives," the document says its purpose is to "gather information for study and action on what is happening in courts in Los Angeles under DA Gascón's new directives."

The document asks recipients a series of questions to identify prosecutors who go against Gascón in court.

Asked about the document, one prominent deputy district attorney said, "I can't talk to the media. Mr. Gascón will treat it as insubordination and I don't want to be disciplined."

Prosecutors who have complied with Gascón's charging directives have been told by some judges that what they were doing violated the law, according to sources who spoke on the condition of not being identified.

Within the office, some prosecutors said their line supervisors have communicated the directives to their teams while others said they've received no direction from their supervisors. Only emails from Gascón's office.

While Gascón's directive to withdraw enhancement charges such hate crimes and gang affiliation in open cases and recent convictions has arguably come under the most scrutiny, his policy to end the use of cash bail is facing major opposition from the bail industry.

Jeff Clayton, executive director of the American Bail Coalition, said in an interview that he sees two areas where Gascón's decision to take bail off the table raises constitutional concerns.

"The law allows bail based on consideration of the factors in each and every case, and he's pre-judged all of those. So can he do that?" Clayton asked. "He can have a policy as to what he's going to prosecute, but I'm not sure he can go that far."

Clayton said he's also concerned that the policy violates the Victim's Bill of Rights, known as Marsy's Law.

"Victims have the right to be heard on the issue of bail, and does he violate Marsy's Law or the due process clause by prejudging the cases before he knows who the suspect is and who the victim is and has heard from the victim?" Clayton said. "After he hears from the victim, he could certainly say he doesn't think bail is appropriate, but he's basically creating a sham due process for victims, because regardless of what their opinion is, he's already made the decision."

Ezekiel Perlo, directing attorney for the Los Angeles County Bar Association, said in a recent interview that he expects judges will continue to approach the decision of setting bail on a case-by-case basis instead of granting the DA's requests in all of them.

"The fact that the DA doesn't request bail or request an OR [own recognizance] doesn't mean the judge is going to do it," Perlo said. "In many cases, I think the judge will go along. In some cases, I don't think they will. It's just like they have the ability to raise bail when certain things happen."

Szabo defended the policy, saying, "This is not about safety or victims."

"Mr. Clayton's invoking the Constitution is perhaps as rich as he and his associates have become off a system of wealth-based detention," Szabo said. "That's a system that courts have in fact found to be unconstitutional. To my knowledge, the concept of a prosecutor's decision not to request bail, a decision that lies with the court, has not been tested, and that's because it's as absurd as profiting off the incarceration of the impoverished."