Reform at the LA DA's Office

DA George Gascón & Prosecutors’ Union Went to Court to see who’s the boss – legally speaking

Celeste Fremon
Written by Celeste Fremon

On Tuesday, Feb. 2, there was a two-hour virtual court hearing pertaining to the LA Association of Deputy District Attorneys’ legal filing. with which the ADDA hopes to get a judge to prohibit Los Angeles District Attorney George Gascón from instructing the prosecutors who work for him to follow his new reform-minded “directives.”

At the end of the hearing — which featured lengthy arguments by at least three of the union’s high powered, and generally very expensive hired lawyers, countered by arguments from the also well-resuméd  Robert Dugdale, the attorney representing the DA’s office — Superior Court Judge James C. Chalfant pronounced himself “exhausted.”

Chalfant did say, however, that he planned to have a ruling by the end of the week.


How we got here

The case before Judge Chalfant, who appeared to have already read most of the underlying caselaw on the matter, is roughly as follows.

In the November general election, former San Francisco DA George Gascón, who is also a former longtime cop, ran to become the Los Angeles District Attorney on a reformist platform, and defeated two-term incumbent Jackie Lacey by a reasonably margin. He was sworn in on December 7.  And right after that, he announced a list of reforms in keeping with his campaign promises. The changes were labeled Special Directives, and were posted on the DA’s website, for all to check out.

Many of the rank-and-file prosecutors welcomed the reform.  But lots of others did not. One of the most controversial reforms, when it came to some of the prosecutors who were suddenly working under the new guy, was his decision to not to make use of any sentencing enhancements, including California’s three strikes law, the California STEP Act (which can lengthen a sentence if the defendant is believed to part of a street gang), 10-20-life (which drastically lengthens sentences if a gun is involved, even if the defendant never held or fired the gun and didn’t commit the underlying crime, but was present), plus other sentencing strategies that can add years or decades to someone’s prison term, in excess of what the range of sentences that the commission of certain crimes, particularly serious crimes, already requires.

Right after the directives appeared, certain prosecutors and victims rights organizations pushed back hard.  After meeting with various groups, Gascón modified his directive on sentencing enhancements for hate crimes, certain financial crimes, elder and child abuse, and sex trafficking.

For some, the modifications were not enough.  At the end of December, the LA ADDA filed their petition to the court for a writ of mandate that would prohibit Gascón “from forcing compliance” by the county’s deputy district attorneys with his recently-enacted special directives that the union called “not merely radical, but plainly unlawful.”


The arguments

Much of what the ADDA used to bolster its case was the argument that, particularly when it came to the state’s infamous three strikes statute, a local district attorney couldn’t just unilaterally decide not to use three strikes without breaking the law. Furthermore, if the concept of prosecutorial discretion did apply, it could only be used case by case, not as a “blanket” directive stating that nobody in the office can apply three strikes. This blanket approach did not fall into the realm of “prosecutorial discretion,” the ADDA contended.

Even worse, argued ADDA attorney David Carroll, who did much of the talking for the union at the hearing, the new DA was putting Deputy District Attorneys in the position of having to violate the law by following Gascón’s directives.

When it was Robert Dugdale’s turn to rebut the ADDA’s position, the lawyer for the DA’s office first went after the union’s standing, or lack thereof, to even file this petition for a writ.

“The union has not come close to establishing standing,”  Dugdale told the judge.

The ADDA’s only argument about standing, according to Dugdale, was a brief mention in the filing where the union pointed out that they were the collective bargaining entity for the deputy DAs. And, he said, even if their dissatisfaction with the directives could be addressed under bargaining, “there’s a grievance process.” But the ADDA didn’t use the conventional process. Instead ‘they ran to court,” Dugdale said.

After some back and forth, the judge seemed less interested in addressing the matter of standing than in the underlying issues of the filing itself, which, after all, was the point. So Dugdale appeared to wisely shift gears.


Separation of powers

Dugdale said that the ADDA was quite wrong in its limited view of prosecutorial discretion.

Instead, he said, a pile of caselaw has recognized that, when it comes to sentencing enhancements, “prosecutorial discretion is at its height. ” The attorney then ticked off a list of examples.

One of Dugdale’s primary arguments was that the issue at hand was one of “separation of powers,” due to the fact that an elected district attorney was an executive officer of the county.

As such, he said, the California Constitution invests the district attorney with “unique powers.” This meant, Dugdale said, if the state legislature passed a law that compelled a DA to do “this and such,” it would create a separation of powers conflict with the state constitution.

So where does that put those who work under him, the judge wanted to know.

“What happens to an assistant district attorney,” asked Chalfant, “who goes to the DA and says I can’t in good conscience do this?”

Dugdale said that, under the directives, there was nothing stopping a prosecutor from expressing their objections. There was no punishment.

On the other hand, several prosecutors have already simply refused to follow the new guidelines, and said so in court, and in some cases, on local TV.

(For an interesting example of one of these instances, see this excellent story by Frank Stoltze of LAist and KPCC, which also shows the anguish of a woman who wants those who shot and killed her godson to get the harshest possible sentences.)

Near the end of the hearing, there was some additional back and forth between the two camps and the judge over case law, but by a little after 3:30 p.m., everyone seemed to have mostly finished.


And now we wait

“We hope that the court chooses to steer clear of setting a dangerous precedent by interfering with the elected DA’s well settled prosecutorial discretion,” said former federal prosecutor Miriam Krinsky of Fair and Just Prosecution, in an email sent soon after the hearing had ended.

“If DA Gascón’s policies fail,” she wrote, “or if the voters decide they don’t approve of his approach, he can be voted out of office at the next election. But in the interim, the court should allow him to do his job without interference and reject a legal challenge that is, at bottom, an attempt by some to assert their resistance to change.”

Members of local justice reform organizations were also among those who tuned in to the hearing.

“Continuing to try to defend ‘tough-on-crime’ sentencing enhancements when the lived experience of our community members, and the data, show that these approaches destroy lives and don’t reduce crime, is a backward, small-minded approach,” said Michael Saavedra, Community Engagement Organizer for Dignity and Power NOW.*

So what will Judge Chalfant rule?

It’s foolish to predict.  So, along with everyone else, we await his ruling, which will hopefully arrive by Friday.

So….stay tuned.


Correction: February 4, 1:19 a.m. We originally reported that Dignity and Power NOW supported George Gascón in the 2020 race for Los Angeles District Attorney. This was incorrect as Dignity and Power NOW is nonpartisan and does not support individual candidates.

47 Comments

  • Celeste, Mr. Gascon was also represented by “generally expensive” lawyers. Robert Dugdale Esq., is not a government lawyer, he is a high-priced very experienced, very well qualified lawyer who was hired to represent Mr. Gascon as the elected DA. I’m confident that Dugdale is charging a similar hourly rate as the Union’s lawyer. But I do understand that it is necessary to keep the narrative away from facts and try to portray Mr. Gascon as the underdog just in case the Union is successful in this lawsuit.

    I was unable to listen to the arguments due to work, but I was wondering whether there was any mention of the efforts made by Mr. Gascon to encourage defense attorneys to report deputy district attorneys who refused to obey his orders? As you know, but don’t mention, one of the members of his transition team who works for the Public Defender’s Office circulated a Google Docs form to gather information about deputy DAs who don’t obey the orders. Two deputy DAs received ‘reprimands’ for disobeying their orders, so I would imagine that conduct will weigh heavily on the judge in making his ruing.

    Regardless of how this case is decided, I think that Mr. Gascon will have a far bigger problem on his hand – the recall movement. Mr. Gascon won the election largely because of the tremendous, overwhelming partisanship necessary to oust Trump. By the time the recall election comes around (end of 2021) the political climate may not be so favorable to Mr. Gascon.

    • Several of the commenters, from our experiences, know how bad witness la’s reporting can be. It’s not really a bias, as bias can be unintentional. It’s an agenda.

      I always appreciate a commenter like jack, people who have some specific information related to the story, and share these facts, facts omitted to push an agenda. As far as anything Gascon related, witness la is more of a fan club than anything else and not to be trusted.

    • Editor’s Note:

      Dear Jack.

      I’m quite aware that Mr. Dugdale is not a government lawyer. I didn’t say or suggest that he was. I could have said he too was a “high-powered” lawyer, but since I’d already used that term on the other guys, I said he also had a good resumé (although I used a slightly different expression).

      The issue came to mind, because several of us monitoring the hearing were chatting (virtually) and noted that the union had a team of at least three from that one firm who were present (also virtually), with one more listed on the filing who may or may not have been there, namely former U.S. Attorney, Tom O’Brien. Since we knew some of the attorneys on the ADDA team, or in the firm, we also knew that this was not an inexpensive group. Perhaps they worked pro-bono.

      I should imagine that the attorney representing the D.A., Mr. Dugdale — who has an impressive CV and has won a bunch of awards — isn’t cheap either.

      I presume county taxpayers will pay that bill.

      Whatever the case, this is a report on the hearing. I was simply giving the reader a sense of the personalities present. If that doesn’t interest you, fine. But please don’t accuse me of shaving the dice.

      And, no, when Dugdale said there was no punishment for going to the DA and saying, “I can’t do this,” or words to that effect, which he said in response to the judge’s question, no one from the ADDA’s team countered that.

      I wondered if they would, but they didn’t.

      Given your interest, I’m sorry you couldn’t listen. For a knowledgeable person, which you seem to be, it was fascinating. I understand that work intervened. Fortunately, listening was my work so, in this case at least, I had no such conflict.

      Have a good evening.

      C.

      • The length of Celeste’s “explanations” are usually an indicator of how deep her hand was in the cookie jar when caught. Shaved dice is putting it mildly.

  • Mr.Gascon should be allowed to do his job. I am a first time voter, and I’m 47 years old. My husband is serving a prison term of 43 years to life under California three strikes law on a case that carried a maximum term of 2-3-4. 39 years more than his case carries. This is extremely excessive cruel and unusual punishment. This is only his second time in prison. For 245 (A)(1) Assault. He has already served 23 years in prison. Now he is suffering from covid 19. Extreme headaches so bad his face and nose burn. Stomach pain, and loss of taste and smell. He is 55 years old. If he catches covid 19 again he might not make it home. I am very concerned he is not receiving any treatment and is in pain all day.

    • Sadly your situation sounds very similar to Cuomo who murdered thousands of elderly people by placing them back into infected nursing homes.

      I guess the difference would be none of them committed a 245.

      So there’s that.

    • Hahahah “this is only his second time in prison…” and for “245…” are you kidding only his second tome for assaulting someone so bad he got charged with a felony. Your not suppose to go to prison at all! He’s suffering from headaches and so on. What about the victim of his crime? They were either seriously assaulted or could’ve been seriously injured.

      Don’t feel bad at all. Maybe he should’ve learned his lesson on his first or second strike!

      This logic is such a joke!

      Your suppose to be a productive, positive, hard working, spiritual, accountable, responsible, and law abiding citizen. No one is perfect but should you stray the path then you should be held accountable and accept responsibility regardless of the situation.

      • It’s sad that people like you think like that. My husband excepted a plea agreement his first time in prison, and when he went back for the 245 assault. The courts said his only plea agreement was brought and tried separately for purposes of the three strikes law and gave him all that time. What’s the reason for excepting a plea if the law going to violate the terms of the agreement.

        • Most criminals rationalize their decisions to take pleas. The bottom line is that the judge asked your husband if there was a factual basis for his guilty or no contest plea. He had to have answered in the affirmative to proceed. Anything spoken by him after that time doesn’t mean anything. He did what he did and went to prison.

    • Ms. Martin,

      I happen to agree that there are times that the “Third Strike” legislation fails society.

      That said, I am sure when your husband took that prior deal, he was told that if he was again convicted of a felony that case could be alleged as a strike. As often as alleged charges get reduced by the filing DA’s, to have a 245PC case filed suggests a serious transgression. I’d be interested in the totality of his arrest history…

      I’m not opposed to sentencing reform at all and believe that those that lose their freedom should be treated humanely; however, there also has to be some consideration for victims and society as a whole in terms of what to do with career criminals – particularly those that are violent. The third strike law aside, Gascon should be ashamed to not allow other sentencing enhancements to be filed.

    • I completely agree with you on this, I have a family member that was convicted of 2 attempted murders, a person was shot in the leg with a fragment and they also charged him with attempted murder on a John doe. Attempted murder only carries 5, 7 or 9 years. He was sentenced to 57 years to life, due to enhancements. Never been to prison before this, no violence on his record at all. Just made a mistake. He was 21 when this happened and is now 32. Not allowing gascón to do his job, would not only undermine him but would also undermine the voters and what they voted for. On his campaign, he did let it be known that this was his plan. Evidently the voters wanted change because the old way isn’t working. If that’s the case, LA would be a hell of a lot safer and it’s just not.

      • “Just made a mistake.”

        Attempted murder is “just a mistake?”

        Remember: conviction requires a full-blown jury trial, and afterwards there is the appellate process where”mistakes” can be pondered & rectified.

        • Rakkasan,

          Yea shooting someone in the leg shouldn’t be attempted murder, assault yea, attempted murder, no. And you don’t need to tell me about the appeal process, I’m fully aware of it, trust me.

      • Well my husband plea agreement was in 1990 four years before the three strikes law came out. So how is it lawful for the government to now say we have the right to separate that plea just to give you more time. THE PLEA AGREEMENT WAS FOR SEVEN YEARS. Now you come back in the name of the three strikes law and separate that agreement and give him 40 years for the same plea agreement you gave him seven years for. If it was your husband, brother, father mother or daughter you would do everything in your power to help them. You say this shit cause it’s not your family. God see and hear everything. Nobody should be thrown away in prison on a case that carried a maximum sentence of 2-3-4 years. I will be praying for yall who thinks like this. GOD BLESS.

        • Well my husband plea agreement was in 1990 four years before the three strikes law came out. So how is it lawful for the government to now say we have the right to separate that plea just to give you more time. THE PLEA AGREEMENT WAS FOR SEVEN YEARS. Now you come back in the name of the three strikes law and separate that agreement and give him 40 years for the same plea agreement you gave him seven years for. If it was your husband, brother, father mother or daughter you would do everything in your power to help them. You say this shit cause it’s not your family. God see and hear everything. Nobody should be thrown away in prison on a case that carried a maximum sentence of 2-3-4 years. I will be praying for yall who thinks like this. GOD BLESS. THEY WILL HAVE A PETITION COMING OUT THIS YEAR TO GET RID OF THE THREE STRIKES LAW FOR GOOD. I PRAY EVERYONE GET ON BOARD AND LET’S GO AWAY WITH THIS LAW THAT ONLY TARGETS BLACKS AND MEXICANS.

        • Ms. Martin,

          Of course it is lawful. The question for society is should it continue? The Three Strikes law was amended in 2012. You may want to check with your husband’s attorney and see if any of those changes are applicable to him.

          For my money, prior convictions should count but the sentences should be more reasonable. I understand that you love your husband but conversely, people have a particular distaste for those that victimize others – particularly when it happens repeatedly. I wish you luck. Hopefully your husband will recover, be released at some point and not reoffend.

    • Will you be reporting about it again, as soon as the judge rule. I’m on pins and needle on this for family reasons.

  • Thank you as always for your reporting, Celeste. I need to clarify that Dignity & Power NOW did not and does not endorse candidates. We did not endorse Gascon during the DA race. While we do support many of his current policy changes and recommendations, we are not a partisan organization. We are accountable to the community, only. Not electeds.

  • Excepting a plea deal is quite a distressing event.
    Excepting anything is pretty stressful.
    Except when you accept.
    Then it’s not too bad.

  • It’s amazing how people shout the mantra, “he was elected by the people, let him do his job” and try to make the argument so “passionately and vehemently” at this time in the case of Gascon. The current LA County Sheriff was elected too! Where were these same vocal “diehards” with regards to respecting the sanctity of the outcome of elections and will of the people during the entire term of President Trump, passing of CA Proposition 8 and the CA voters support of the death penalty? In all these cases the “will of the people” was clearly and unquestionably decided at the ballot box, yet a concerted effort was made to undermine a President, while in the case of the CA ballots initiatives the court interceded and overruled the vote of the people and in the other initiative the governor used his executive powers to nullify the vote and impose his “rule”. Was this fair or in the spirit of, “let him do his job, the voters have spoken”?

    It’s a clear double standard and bold example of “looking the other way” and overt case of of biased infused reasoning when it suits ones own agenda, cause, position or ideology. Scary!

    No, let the challenges keep proceeding, it’s the way our government works. We can’t have fascism running amok right? Peoples voices can’t be silenced whether they support or oppose your position. I look forward to the recall petition for Gascon and and am still waiting for the one to be circulated for Sheriff Villanueva. Oh, that’s right the BOS and their fanboys have been trying to do an end-run around the process via “executive action” versus abiding by the “will of the people”.

    • The most significant result of Alejandro VILLANueva’s leadership failures will ultimately be to the detriment of every elected sheriff in the state, and quite possibly, the nation.

      “Editorial: Alex Villanueva isn’t L.A. County’s only sheriff problem. Let’s rethink the job entirely”
      https://news.yahoo.com/editorial-alex-villanueva-isnt-l-164130035.html

      His one term in office is as bad as that one season of the failed TV disaster of a series called the “Deputy”.

  • Celeste: Even though I’ve commented on your outstanding conscientious Witness LA website myself a few times over the years (dissenting generally from the left-center, most recently on Jan. 22nd), and would miss the opportunity to do so, the bile of your conservative detractors (AKA trolls) who comment here is so rancid as to more-than-justify your removing the Comments section altogether. These reactionaries are abusing your journalistic social media “good offices” as if it were Parler. You’re a Voltaire-level saint for tolerating them. But you’re not obliged to.

    With or (preferably) without Comments, keep up the great work!

    • “You’re a Voltaire-level saint….”

      Voltaire is the one who is said to strongly believe in this precept:

      “I may disagree with what you say,
      but I will defend to the death
      your right to say it.”

      Take away that right and we are in deep shit.

      • Rakkasan,

        Amen. We are so fortunate in this country that we have free speech. I have a friend temporarily living in Saudi Arabia on business. You sure don’t just write every random thought there on a blog! I’m probably the odd man out here but I enjoy reading the thoughts of others, whether we agree or not…

        • Another,

          Free speech in this country died not long ago. It’s indirectly suppressed by the democrats in government by and through their proxies – Twitter, YouTube, Facebook, etc. They are going scorched earth on conservative voices, canceling their very livelihoods if they dare say anything about the STOLEN ELECTION or express their appreciation of President Trump.

          • I don’t believe free speech is dead but some struggle with everyone having it. With all due respect, if the election was stolen, one of the 60 judges, one of the many Governors and/or election personnel would have found credible proof of same and provided it to the courts and the press. They haven’t. All those government employees couldn’t hide a case of beer in the office without talking about it to each other and friends – much less falsify election results. I hope that folks will stop spreading that false narrative. It furthers division and instability among some folks that are less than stable to begin with.

          • Dose,

            I don’t believe free speech is dead but some struggle with everyone having it. With all due respect, if the election was stolen, one of the 60 judges, one of the many Governors and/or election personnel would have found credible proof of same and provided it to the courts and the press. They haven’t. All those government employees couldn’t hide a case of beer in the office without talking about it to each other and friends – much less falsify election results. I hope that folks will stop spreading that false narrative. It furthers division and instability among some folks that are less than stable to begin with.

  • Really Celeste?
    Delete the least offensive of my comments?
    Lmao.
    Libs can’t candle facts.
    Libs can’t handle rational arguments.
    Celeste is a lib.
    Facts.

  • Ms.celeste, Do you think my husband has a good chance of coming home if the Judge rules in Mr.gascon favor?

  • Ms.celeste, Do you think my husband has a good chance of coming home if the Judge rules in Mr.gascon favor? Lolitha Cornett Martin.

    • Lolitha Cornett Martin:

      I think that “Another…” said it best in his post up above:

      “You may want to check with your husband’s attorney….”

      An attorney can give you information that you can hang your hat on; not so a Journalist, who can give you only an educated guess based on personal experience. Maybe, for you, that’s good enough.

      If your husband doesn’t have an attorney, or has one that you are not satisfied with, try Googling “Criminal Defense Attorney–Los Angeles” and you’ll likely find an attorney that can give you advice that you can afford & hang your hat on.

      Good luck!!!

      • Hakkasan, Thanks for the good advice. I really just want my husband home. We have a three bedroom house and I’m by myself waiting and praying for him to come home. He already has a job immediately upon his release.

        • Good luck!!!

          When my wife is outta the house my three pet dogs are really good company–a dog is truly man’s best friend.

          Take care.

  • Gascon’s arbitrary and broad actions will eventually alienate the voters and will lead to a rejection of most criminal justice reform efforts. There are many opportunities for meaningful criminal justice reform however these possibilities will die with increasing crime rates.

  • ReaLow – You now sound like Fifi. Celeste will not let ReaLow and Fifi play in the sandbox? Maybe you and Fifi should exchange your offensive comments. At least you will have an audience. You sound like Jack Nicholson with a lisp in A Few Good Men, “Libs can’t candle the truth!” You might want to except that English is not your strong suit, accept when you’re belittling other folks. I would love to see those police reports.

  • Breaking News….”Judge issues in junction barring Gascon’s new directives, Several of D.A. Gascon’s reforms blocked by L.A. County judge…” I guess some folks in the So Cal judicial system weren’t ready for Gascon’s “Reimagininig of the Law” per his “research supported” view of the law. The use of “discretion” and viewing individual cases “on their own merits” versus a blanket approach will be the way forward.

    Gascon and his team can appeal of course.

  • Miriam Krinskey said Prosecutorial discretion was settled law. I guess it’s not so settled.

    Many of the same people who support Gascon saying he was elected by the voters, let him do his job attack the current Sheriff for trying to do his.

    I am not a huge fan of either but the hypocrisy of the left is so clearly displayed in the divergent messaging regarding these two elected officials.

    It is interesting with the huge push back against Gascon, by victim’s groups, many of the other elected SJW on the BOS have gone silent.

  • Well, in this case one is clearly not as terrible as the other. Based on my own simple “risk assessment, cost benefit analysis, risk versus reward calculation, balancing the lesser of two evils and all that jazz”, makes me put my money on AV all day. Thankfully, the criminal justice system is not totally brainwashed into “interpreting the law” based on their own idealized/stylized intepretation of the legal tea leaves.

  • Where is all the “vitrol, juvenile insults and all around potty-mouth” for the judge who made the decision regarding Gascons’s directives? No simple minded, immature personnel attacks against the “education” of the Deputy DA’s who filed the lawsuit or the judge who heard it? No criticism regarding the “big fat salaries and pensions” the DA’s and judges get? Such a clear double standard. Criticism and ridicule for some, blind eye and look the other way for others. Is this not the epitome of prejudice and double standard?

    Childish Fool and others use any occasion to insult, deride, belittle and criticize police officers for their “lack of education” and “bad decision making” but are quiet when it comes to the DA’s and judges who are the true power brokers in the criminal justice hierarchy. The police will only enforce the laws the politicians make and are dependent on the DA’s support. At least now, the public will know why crime has gone up and the “criminal” (not victim as the SJW likes to refer to them) is offending again, and again, and again. Blame it on your Public Defender / District Attorney Gascon.

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