Judge enjoins LA DA’s ‘unlawful’ directives

Several directives Los Angeles County District Attorney George Gascón issued on his first day in office have forced his prosecutors to violate the law, their oaths of office and their ethical and professional obligations, a superior court judge ruled Monday.

Judge James C. Chalfant ruled in favor of the Association of Deputy District Attorneys for Los Angeles County, a union representing more than 800 of Gascón's line prosecutors, granting a preliminary injunction enjoining the policies that the prosecutors argued, and he concluded, are unlawful and unethical. Chalfant held that absent a preliminary injunction, deputy DAs would be forced to put their careers on the line by following special directives which have already been criticized by dozens of trial court judges in the two months since they took effect.

"It is true, as the district attorney argues, that the trial court judge should know that deputy district attorneys are following the direction of their employer, making sanctions less likely," Chalfant wrote in a 46-page decision. "However, ADDA's members have already incurred trial courts' ire and need not wait until one of them is sanctioned or disciplined by the State Bar. There is a real prospect of sanctions, and an employee should not be forced to choose between his or her job and complying with the law."

Under the injunction, prosecutors in Los Angeles County are no longer prevented from seeking increased prison sentences under the three strikes law, unless they have legal grounds to argue dismissing or withdrawing such charges is in the interest of justice. Nor will they be required to read a pre-written statement in court arguing the three strikes law is an unconstitutional infringement of prosecutorial discretion without referencing appellate decisions that have held prosecutors have a ministerial duty to plead and prove all known strikes.

"A district attorney's discretion is not unlimited," Chalfant wrote. "He or she must work within the framework of the criminal system."

The injunction also prevents prosecutors from moving to dismiss enhancement allegations such as gang affiliation or gun use in active cases, or any special circumstance allegations that would result in a sentence of life without the possibility of parole, unless prosecutors have legal grounds to argue doing so would be in the interest of justice. Chalfant's decision also bars Gascón from forbidding his deputies from seeking increased sentences by using proven special circumstances in their charging documents, because that would violate the will of the voters who enacted Proposition 115 in 1990. Proposition 115 prevents judges from striking or dismissing special circumstances that have been admitted by a guilty plea or have been found true by a jury.

Chalfant's decision does not, however, prevent Gascón from maintaining his policy that prevents deputies from charging sentencing enhancements in new cases which are not required by the three strikes law.

In a statement issued late Monday, Gascón said he will appeal the decision, but until that is decided, he will adjust his policies to conform with Chalfant's decision.

"I never had any illusions as to the difficulty and challenges associated with reforming a dated institution steeped in systemic racism," Gascón said. "My directives are a product of the will of the people, including survivors of crime, and a substantial body of research that shows this modern approach will advance community safety."

Gascón called Chalfant's decision "novel in that it requires my office to apply the Three Strikes law contrary to the current practice in Los Angeles County and other jurisdictions across the state," such as San Francisco, where he was once the DA.

"We can no longer afford -- morally, socially or economically -- to justify tough-on-crime policies in the name of victims when a majority of the survivor community supports rehabilitation over excessive sentences," he said. "The long-term health and safety of our community depend on it."

Deputy DAs and the attorneys representing them praised the judge's decision, calling it "a victory for the rule of law."

"This lawsuit has never been about whether sentencing enhancements are good or bad policy, but about whether a district attorney can force prosecutors to violate clear California law in order to carry out his desired policy changes," said David J. Carroll, partner at Browne George Ross O'Brien Annaguey & Ellis LLP. "We are grateful for the court's detailed opinion enjoining a subset of the district attorney's special directives for doing exactly that."

Deputy District Attorney Jon Hatami, who prosecutes many high profile child abuse cases and has been an outspoken critic of Gascón's special directives, called Chalfant's decision a "humiliating rebuke of Gascón."

"It is a reminder that no one is above the law and the law in Los Angeles is not determined by one man, no matter how much of an opportunist, but by the people of the State of California," Hatami said. "It is a victory for the community, victims, survivors and their families and a reminder to all [deputy district attorneys] that we are required to follow the law, not the demands of the DA or any elected or unelected official. We swore an oath; we must hold to it."

Los Angeles County Public Defender Ricardo Garcia said in a tweet following the decision, "Angelenos elected George Gascón to reform the criminal legal system as the community demands. I will always support efforts that promise enduring justice reform and an end to racial injustice."

In his decision, Chalfant wrote Gascón's special directives didn't come as a surprise, considering he garnered more than 1.6 million votes "on a platform of reform-minded and less punitive approaches to a variety of conduct, including serious offenses previously punished with extreme prison terms." But the judge held the directives that required prosecutors to dismiss enhancement allegations in active cases, forgo alleging prior strikes under the three strikes law or forgo using proven special circumstances in charging documents violate California laws which hold these duties are mandatory, not discretionary.

The judge also hinted that if Gascón wants to prohibit his deputies from filing strikes under the three strikes law, he should look to policies implemented by former District Attorney Steve Cooley, who held office from 2000 to 2012.

"When District Attorney Cooley was in office, he was concerned that a third strike could be a minor felony -- e.g., theft of a pizza -- that would lead to a 25 to life sentence," Chalfant wrote.

As a result, Cooley issued a special directive that Chalfant said was intended to address this concern "while complying with the three strikes law." While Cooley's directive ordered that all qualifying prior felony strikes must be alleged in pleadings, "The directive further provided that the new case would be presumed as a third strike for a defendant with two prior strikes only if the new charge is a serious felony or involved a significant quantity of drugs," Chalfant wrote.

Unlike Gascón's three strikes directive, Chalfant wrote Cooley's was consistent with statutory requirements under Penal Code Section 667(f) (1), which holds prosecutors are required to "plead and prove each prior serious or violent felony conviction."

Gascón is still free to implement the remaining special directives he issued on Dec. 7, including not seeking the death penalty, not trying juveniles as adults and not having prosecutors attend parole hearings.

In opposing the deputy DAs' lawsuit, Gascón had argued that allowing his deputies to challenge his policy directives "under the guise of legal ethics complaints" would substitute their policy views for his.

Chalfant wrote he partially agrees with that argument. Line prosecutors, Chalfant wrote, can argue in good faith that although case law has concluded they have a statutory requirement to plead and prove strikes, the California Supreme Court has not yet decided whether the plead and prove requirement violates the separation of powers, as Gascón contends it does.

But the statement Gascón required his prosecutors to read when moving to dismiss or withdraw prior strikes in active cases does not cite controlling case law, and therefore creates an ethical dilemma for them, Chalfant wrote.

The judge held that Gascón, through his directives, has abandoned the three strikes law in an unlawful way, and that his prosecutors, who have been routinely admonished by trial courts for following his directives, have shown that absent an injunction they would face irreparable harm in the form of court sanctions, contempt and State Bar discipline.