LA DA defends directives, says laws need to change

California prosecutors are not required to seek increased prison sentences for accused felons who have violent or serious prior convictions under the state’s three strikes law or other statues that allow longer sentences, argued Los Angeles County District Attorney George Gascón in response to a lawsuit by many of his deputies that asserts his policy prohibiting the filing of enhancement charges is illegal.

Instead, the brief states, it is a deputy district attorney’s job to conform to the directives of the DA whom “millions of county residents elected to implement criminal justice policies in their community.”

“Allowing [deputy district attorneys] to challenge policy directives of district attorneys under the guise of ‘legal ethics’ complaints would substitute the policy views of line prosecutors for the view of the district attorney,” Robert E. Dugdale of Kendall Brill & Kelly LLP wrote in the brief filed Friday in Los Angeles County Superior Court on behalf of Gascón.

Gascón’s directive prohibiting the filing of sentencing enhancement charges such as prior convictions, use of a gun and gang affiliation is at the center of a lawsuit brought against him by the Association of Deputy District Attorneys for Los Angeles County, which represents Gascón’s line prosecutors. The deputies argue that California law makes clear that prosecutors must file strikes in every eligible case, even if an elected district attorney says it’s office policy not to.

“The DA claims that going into court and doing what he orders, even if it’s against the law, is our job,” said Deputy District Attorney Jon Hatami, who prosecuted the high-profile child abuse case of Gabriel Fernandez, an 8-year-old tortured for months by his mother and her boyfriend, until they killed him.

“We are nothing but his employees,” Hatami continued. “George Gascón says even if his policies are ‘contrary to current law,’ that’s no big deal, if a [deputy district attorney] just makes a reasonable argument that the law should be changed, you are good to not follow the law.”

Hatami and his colleagues were recently given a script to read in court that asserts California’s three strikes law is unconstitutional insofar as it strips elected DAs of their prosecutorial discretion. They say reading the script is unethical because it forces them to say something that courts of appeal have upheld is illegal.

But Gascón defended the script in his response Friday, arguing that California’s Rules of Professional Conduct grant his prosecutors permission to advance positions that conflict with current law, such as not pleading strikes.

“Even if a [deputy district attorney] believed that the directive’s statement about the constitutionality of the three strikes law did not comport with court of appeal decisions, he may nonetheless repeat the directive’s statement — and do so ethically — as long as there is a reasonable argument that there should be a change in the existing law,” Dugdale wrote.

Former LA DA Steve Cooley, who has been in court challenging Gascón’s enhancement directive on behalf of families of murder victims, said Gascón’s response lacked a legal grounding. Cooley added that he interpreted it more as a public relations document than a legal brief.

“I searched and I searched, but I could find no real discussion regarding victims and the impact of Gascón’s directives on victims and next of kin of victims,” Cooley said. “That is very telling to me and should be to the court.”

Career prosecutors have said Gascón’s directives have forced them into an ethical dilemma, making them choose between following the law they swore an oath to uphold or follow their new boss’ orders.

“His special directives place DAs in a very difficult position,” said Deputy District Attorney Cindy Wallace. “Follow the law or follow the policy, policy that appears not to be based in law or science but based on the opinion of one person. While the DA has discretion in what to charge, he does not make the laws. He is here to uphold them.”

About a week after the deputies’ association filed suit against Gascón, the 2nd District Court of Appeal, the same court that would hear an appeal in Gascón’s case, issued a decision that may have left a paper trail for the trial court in this case to follow.

The 2nd District panel held that while “the selection of criminal charges is a matter subject to prosecutorial discretion … the three strikes law limits that discretion and requires the prosecutor to plead and prove each prior serious felony conviction.” People v. Laanui, B297581 (Ct. App. Jan. 8, 2021).

Gascón, who made a frenzy of media appearances during the campaign but has been largely out of the public eye since taking office on Dec. 7, has said he believes the current statutory ranges for criminal offenses alone without enhancements are sufficient to hold people accountable and uphold public safety.

His supporters have argued the laws he wants to reverse — capital punishment, three strikes, cash bail and juvenile prosecutions, to name a few — are hallmarks of the tough on crime era, and that Gascón’s changes were long overdue.

But judges throughout LA County have been denying prosecutors’ motions to dismiss strikes, saying they aren’t in the interest of justice, the legal requirement for a judge to grant such a motion. Some jurists have gone as far as to openly scold deputies who have followed the directive, saying dismissing enhancement allegations would amount to an abandonment of prosecutorial duty.

Still, Gascón argues that his prosecutors have not shown they’d suffer irreparable harm absent a preliminary injunction enjoining his policies, and that a ruling in their favor would subvert the will of those who elected him and impose an undue burden on the administration of justice in LA County.

A hearing in the case is scheduled for Feb. 2, when Gascón is expected to defend his policies.