Katyal to defend DA in fight with prosecutors over sentencing policy

Los Angeles County District Attorney George Gascón announced Thursday that former U.S. acting Solicitor General Neal Katyal will represent his office in a lawsuit filed by many of his own prosecutors challenging the legality of some of his sentencing policies.

Katyal, a partner at Hogan Lovells LLP in Washington, D.C., was the acting Solicitor General under President Barack Obama and has argued more than 40 cases before the U.S. Supreme Court.

"Neal is one of the top lawyers in the nation and his vast legal experience will only benefit my mission to help reform the criminal justice system in Los Angeles County," Gascón said in a statement. "I am confident that with Neal's assistance we will prevail and continue on a path to achieve these goals."

Filed by the Association of Deputy District Attorneys for Los Angeles County, a union representing more than 800 of Gascón's line prosecutors, the lawsuit argues Gascón's policies -- such as the one demanding deputies seek dismissals of sentence enhancements provided under the three strikes law -- are unlawful and unethical.

Vice President Eric Siddall of the Los Angeles deputy district attorneys association, responded to an email seeking comment: "We are going to rely on the merit of our argument in court, not on meaningless news releases filled with buzzwords."

Cristine DeBerry, founder and executive director of the Prosecutors Alliance of California, a breakaway group from the main statewide California District Attorneys Association, said in Gascón's new release that Katyal, who is Indian-American, was perfect for the case.

"Mr. Katyal has argued more Supreme Court cases than any other person of color in American history," DeBerry said. "It's incredibly appropriate that he will be litigating a case with extraordinary consequences for communities of color that have disproportionately felt the weight of racist sentencing policies, like enhancements, and that simply have not made us safer."

Katyal's latest U.S. Supreme Court victory was defending Nestle from accusations that the company was complicit in the use of child slavery on Ivory Coast cocoa farms. The decision limits the ability of other domestic companies to be held accountable for human rights violations abroad under the Alien Tort Statute of 1789. Nestle USA Inc. v. Doe et al., 2021 DJDAR 5977 (S. Ct, June 17, 2021).

In another lawsuit before an en banc panel last month, Katyal defended Wells Fargo Bank from a City of Oakland lawsuit claiming the bank duped Black and Latino borrowers into taking out predatory loans, causing foreclosures and millions of dollars in lost property tax proceeds. In oral argument, Katyal told the 9th Circuit that Oakland would benefit from foreclsoures because it would allow the city to raise property taxes. City of Oakland v. Wells Fargo & Co., 2020 DJDAR 9367.

Siding with the association in February, Los Angeles County Superior Court Judge James Chalfant enjoined Gascón from implementing his directives, finding that they forced prosecutors to violate the law, their oaths of office and their ethical and professional obligations.

Under Chalfant's injunction, Los Angeles prosecutors are no longer prevented from seeking increased prison sentences under the Three Strikes law, unless dismissing or withdrawing such charges would be in the interest of justice. Nor will they be required to read a pre-written statement in court arguing the law is an unconstitutional infringement of prosecutorial discretion, as they were required to do under Gascón's policy directives before the injunction. Association of Deputy District Attorneys v. George Gascón, 20STCP04250 (Cal. Sup. Ct., led Dec. 30, 2020).

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

Gascón appealed to the 2nd District District Court of Appeal, calling 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.

Gascón's office did not respond to questions about Katyal's hiring, including how much he is being paid by the county.