Gascón appears to back down on enhancements policy as other DAs in California rebuke him

In an unusual move Tuesday, the California District Attorneys Association announced it would back a lawsuit challenging the legality of new Los Angeles County DA George Gascón's directives and sentencing guidelines, saying several of the policies are unethical and violate the state's constitutional protection of crime victims.

"[The DA's association] is not a regulatory body and does not typically address policy differences among the 58 elected district attorneys," El Dorado County DA Vern Pierson and Riverside County DA Mike Hestrin wrote in a letter sent Tuesday to Michele Hanisee, president of the Association of Deputy District Attorneys of Los Angeles County, which is seeking a temporary restraining order against some of the directives. "However, [the DA's association] believes it must act when policies implemented by an individual district attorney go beyond the exercise of discretion to contravene the state constitution and prosecutor ethics," the letter said.

An amicus brief is expected to be filed by the association by the end of the month.

Gascón, who is also facing the prospect of a formal recall effort, has come under fire since his inaugural address on Dec. 7, when he directed his prosecutors to no longer seek sentence enhancements such as gang affiliation, multiple murder or gun use allegations that can increase prison sentences under California law.

"Over-incarceration, the practice of sending people to jails and prisons for too long, does not enhance safety," Gascón said in the speech. He described enhancements as being outdated and "a principal driver of mass incarceration."

Less than two weeks later, Gascón slightly amended the policy to allow enhancements to be filed in a slim number of cases after having what he described as extensive conversations with victims, community members and prosecutors.

But in a striking move in an apparent response to the state DA association now challenging his directives, Los Angeles County prosecutors received a memo Tuesday afternoon labeled "urgent" that hints Gascón is again considering walking back his enhancement directive.

"The administration intends to take a more detailed review of special circumstance cases," wrote Gina T. Satriano, director of the office's bureau of brand and area operations. "Per the interim chief deputy, please have assigned deputies put over cases with special circumstance allegations for at least 30 days as the office determines how it will proceed in special circumstance cases."

Deputies in the office who spoke to the Daily Journal on condition of anonymity said they aren't convinced Gascón's position on enhancements has changed. Because a hearing in the deputy DAs' case is scheduled for Feb. 2, when Gascón is expected to defend his directives, the prosecutors said the 30-day timeline to put over cases allows time to see how the court is going to respond before considering revising the policy again.

"It takes 30 minutes, not 30 days, to read our papers and recognize the illegality of Mr. Gascón's sentencing directives," Eric M. George, who is representing the deputy district attorneys group as co-counsel in their suit against Gascón, said in an email Tuesday.

All of this comes as nearly a dozen former district attorneys, including Steve Cooley, who led the LA office from 2000 to 2012, began appearing in court Monday to provide pro bono representation for murder victims' families. The group, composed of former deputy DAs from Los Angeles County and one from Orange County, are asking judges, at the request of current deputy DAs, not to dismiss enhancement charges, as directed by Gascón.

"There has never been a need for lawyers to come to court on behalf of the next of kin of victims because DAs always followed the law and fulfilled their obligations under Marsy's Law," Cooley said in a phone interview Tuesday. "Now, we're filling a void here."

Matthew D. Murphy, a former Orange County deputy district attorney now in private practice, planned to appear in court Wednesday on behalf of the widow of LA Sheriff's Sgt. Steve Owen, who was executed while on patrol in Lancaster in 2016. Murphy filed a motion on Jan. 4 saying he expects Gascón, under his directives, to move to dismiss all enhancements, strike allegations and special circumstances in the case, and that Murphy plans to challenge that move in court.

"The district attorney has demonstrated a manifest disregard of victims' rights, and the Owen family, understandably, have lost all faith in the professional judgment of his administration," Murphy wrote in the motion.

Gascón is also drawing rebukes from his colleagues around the state. Sacramento County DA Anne Marie Schubert and San Diego County DA Summer Stephan have both taken the unprecedented step of revoking jurisdiction from Gascón in cases involving their counties.

And on Monday, Los Angeles County Judge Jose L. Sandoval granted a motion from Stephan to return the case involving a defendant charged with committing a chain of robberies in San Diego before traveling to Los Angeles and murdering two people, including a sheriff's deputy, in 2019. Stephan filed the motion after learning Gascón planned to dismiss special circumstance allegations that would have allowed the judge to sentence the defendant to life in prison without the possibility of parole if convicted, a sentence Gascón took off the table on day one.

"These are rebukes on steroids," Cooley commented.

A series of internal memos from December that were obtained by the Daily Journal illustrate the friction Gascón has experienced as he tries to restructure the nation's largest local prosecutorial office.

In a Dec. 10 memo sent to Joseph Iniguez, Gascón's interim chief deputy, prosecutors in the office's appellate division said DAs are required by state statutes to plead and prove all known prior strikes, and that it's unlikely they can challenge judges who deny prosecutors' motions to dismiss enhancements.

"If the court denies our motion to dismiss, that decision is likely not reviewable at all, but even if it were, it would be reviewed under a deferential abuse-of-discretion standard," the memo states. "We would not be able to prevail under that standard solely by citing our disagreement with the current law."

Another memo cites the case of People v. Kilborn as being "directly contrary" to Gascón's special directive requiring deputies to argue portions of Penal Code sections 667 and 1170.12, which mandate imposing longer prison sentences for those who commit a felony and have been previously convicted of one or more serious or violent felonies, are unconstitutional infringements of the prosecutor's discretion. People v. Kilborn (1996) 41 Cal.App.4th.

"On the constitutional issue, Kilborn is on point and is directly adverse to the office's legal argument," the memo said. "Deputies that know of Kilborn therefore have an ethical duty to cite it when making the argument."

"If reports are accurate about the DA's appellate division memos, this isn't a matter of carelessness," said George, the attorney representing the LA deputy DAs. "Rather, Mr. Gascón intentionally chose to violate California law by implementing his sentencing directives."

Some legal experts disagree with the criticism of Gascón, defending his approach as long overdue. Pointing to the 1998 case of Pitts v. County of Kern, Erwin Chemerinsky, dean of UC Berkeley School of Law; David Mills, professor of practice of law and senior lecturer at Stanford Law School; and Michael Romano, director of Stanford Law School's Three Strikes Project, recently said in a joint statement that the California Supreme Court has made clear that DAs have complete authority to enforce criminal law in their counties.

"The deputy district attorneys association's concern over striking enhancements is inconsistent with their decadeslong silence when former district attorneys often dismissed enhancements and three strikes allegations in the interests of justice," the group said. "That the association now claims the practice to be unlawful is more reflective of their long-standing opposition to reform and the will of millions of Angelenos than it is the legality of DA Gascón's directives."

However, in their letter to Hanisee, Pierson and Hestrin minced no words in laying the groundwork for their pending amicus brief.

"A one-size-fits-all approach to individuals charged with crime is both arbitrary and ineffective," the DAs wrote. "By prohibiting prosecutors from using the basic tools necessary to seek justice, the district attorney figuratively places his hand upon the scales of justice, and tips that scale against crime victims, in favor of criminal defendants."

Max Szabo, who served as Gascón's campaign spokesperson and has been handling media inquiries but is not employed by LA County, directed requests for comment on this story to the Los Angeles County Counsel's Office, which declined comment Tuesday.