LA DA tells deputies to take judges’ names; prosecutors’ group says some policies are illegal

In an internal directive sent to all Los Angeles County prosecutors, new District Attorney George Gascón ordered them to report the names of judges who deny motions to dismiss criminal sentencing enhancements. The deputy district attorneys association said in a memo to its members on Wednesday that several of the DA's instructions violate the law.

The directive, made available to the Daily Journal, instructed prosecutors to use specific language when seeking dismissal motions stating that enhancements are "unconstitutional," "infringe" on the state Constitution and "provide no deterrent effect or public safety."

Several judges and deputy district attorneys have indicated in court they believe the motions are not in the interest of justice in the cases before them.

The Association of Deputy District Attorneys for Los Angeles County, which opposed Gascón's election and supported incumbent Jackie Lacey, had been silent since the new DA took office. However, the group's letter to prosecutors on Wednesday said a California court of appeal in People v. Kilborn, found enhancements based on prior convictions were constitutional. People v. Kilborn, 41 Cal. App. 4th 1325 (1996).

"It is clear that many of these new special directives, if followed, require DDAs to violate the law and our duty of candor to the court," the letter reads. "We sympathize with the position that DDAs are being put in -- to choose between following the special directives or your professional duties and the law. That said, the ADDA cannot make that choice for you."

Upon taking office Dec. 7, Gascón immediately made sweeping changes to longstanding prosecution policies, announcing he would stop requests for cash bail and the death penalty, and ban prosecutors from seeking enhanced prison sentences such as prior convictions or gang membership that California law says can be used to add time to prison sentences.

"If a court refuses to dismiss the prior strike allegations or other enhancements/allegations based on the People's oral request, the DDA shall seek leave of the court to file an amended charging document...," the Dec. 15 memo reads. "If a court further refuses to accept an amended charging document..., the DDA shall provide the following information to their head deputy: Case number, date of hearing, name of the bench officer and the court's justification for denying the motion (if any). The DDA shall stipulate to any stay of proceedings if requested by the defense."

Deputy district attorneys, who asked not to be identified for fear of retaliation, said the purpose of gathering the judges' information could be to file a motion to disqualify them from further criminal proceedings under Code of Civil Procedure Sections 170-170.9, also known as "papering" a judge. The rule gives a DA's office the power to preclude a judge from hearing any criminal case filed by the county prosecutor's office.

Since several judges have denied the motions over the past week, the effect of an effort to disqualify all of them in a heavily backlogged court could interfere with the constitutional rights of defendants to speedy criminal proceedings.

Asked if Gascón is compiling a list of judges who oppose his new policy, his spokesman, Max Szabo, said he did not know if such a list exists or what the purpose of such a list would be.

"What would be the problem with that, if that is true, is a better question, right?" Szabo said. "The executive gets to determine what to charge, how to charge it and what have you, so if the courts are not abiding by that, that raises some separation of powers issues and we are curious to see where and when that is happening."

Some who say sentencing enhancements are excessively punitive have applauded Gascón's new policies. However most victim's advocates and deputies within Gascón's own office say to do away with enhancements is to do away with an effective crime deterrent.

Asked to respond to some of the criticism being directed at Gascón's new policies, Szabo said there is no evidence that seeking additional prison time in serious felony cases helps protect communities and, in fact, he said, studies suggest the extra years in custody may add to recidivism rates.

"Over Mr. Gascón's decades in policing and prosecution, he has reduced violent crime in every position he has held," Szabo said. "He has and will continue to be making decisions based on data science and research, not fear and emotion."

Mayor London Breed of San Francisco, where Gascón was district attorney before quitting to run in Los Angeles, opposed his election, saying crimes increased during his tenure.