LA DA’s counsel argues in court against his deputies

LOS ANGELES -- Attorneys for District Attorney George Gascón and prosecutors in his office faced off in court Tuesday to argue over whether the Los Angeles County DA should be enjoined from implementing his policy uniformly forbidding deputies from recommending longer prison sentences under sentence enhancement laws.

Superior Court Judge James C. Chalfant heard arguments Tuesday for and against a preliminary injunction that would force Gascón to abandon his new directives that prosecutors seek dismissals of extended prison sentences under the Three Strikes Sentencing Initiative, gang membership, gun possession and other laws.

Representing Gascón and the district attorney's office was Robert Dugdale of Kendall Brill & Kelly LLP, who said implementing charging policies is what Gascón was elected to do and no California case exists showing that implementing a uniform policy is an unlawful exercise of discretion.

"In this particular case, it was done by a district attorney who got 2 million voters to back these policies. It wasn't a secret what he was going to do when he took office," Dugdale told Chalfant. "So to override that discretion ... is to disenfranchise these 2 million voters who voted for this."

Chalfant replied, "6 million people voted for three strikes, so if we're counting the number of votes, then your client is not following the will of the people."

Dugdale responded shortly afterward, "That was 26 years ago,"

Represented by Eric M. George and David Carroll of Browne George Ross O'Brien Annaguey & Ellis LLP, the Association of Deputy District Attorneys for Los Angeles County filed a lawsuit in December seeking to enjoin Gascón from implementing the directives they say are unlawful.

Prosecutors suing Gascón say they have been forced to choose between disobeying the law or disobeying the head of the office, when faced with the task of filing motions to dismiss sentence enhancements. Association of Deputy District Attorneys v. George Gascón, 20STCP04250 (Cal. Sup. Ct., filed Dec. 30, 2020).

"What petitioner is seeking is for the district attorney's office simply to exercise their discretion on a case-by-case basis in determining whether or not these enhancements should be dismissed," Carroll said in court Tuesday. "The issue that we take with the special directives is they, across the board, require in every single case with no exercise of case by case discretion, to dismiss all these enhancements across the board."

Carroll said prosecutors should not have to wait until they are disciplined by Gascón to allege damages.

While Chalfant said he would not rule on the preliminary injunction until the end of the week at the earliest, he at times seemed inclined to grant it.

"It is rarely a good thing to say 'always' and 'never'," Chalfant said about Gascón's policies. "If you said, 'I am rarely going to impose a five-year enhancement and you've got to clear with me before you do,' I think that would be lawful. But I don't know about saying, 'We're never going to file a case on this or we're never going to seek an enhancement.' Is that really an exercise of discretion? And that's the problem. I don't know."

The lawsuit underscores a growing tension between Gascón and his deputies and victim rights advocates who say the DA's directives are not only not in the interest of justice but illegal.

The association filed the lawsuit despite Gascón walking back portions of his special directive earlier this month. In a memo to his deputies, Gascón said: "After listening to the community, victims, and my deputy district attorneys, I have reevaluated Special Directive 20-08 and hereby amend it to allow enhanced sentences in cases involving the most vulnerable victims and in specified extraordinary circumstances. These exceptions shall be narrowly construed."

Enhancements based on hate crimes, elder and dependent adult abuse, child physical abuse, child and adult sexual abuse, and human sex trafficking were among the ones Gascón had previously ordered his deputies to file motions to dismiss. However they are no longer required to do so.

In a statement made after the suit was filed, Gascón said enhancements and strike allegations have never been shown to enhance safety.

"In fact, studies have shown excessive sentences exacerbate recidivism and create more victims in the future," Gascón said. "For these reasons, as your elected district attorney, I have asked deputy district attorneys entering an appearance 'for the people' to end excessive sentencing practices. Data shows these harsh tactics compromise our community's long-term health and safety, create more hardened criminals and victims, and therefore are not in the interests of justice."