First, They Came for the DA …

Now, they are coming for the deputies.

Next, they will come for the judges.

But all is not lost.

The Metropolitan News-Enterprise has this article on an effort by the Los Angeles Public Defender’s Office to get its deputies to report deputy district attorneys who do not abide by new DA George Gascón’s directives and judges who refuse, among other things, to strike sentence-enhancing allegations. One deputy PD reported in a tweet that “our office received an email link from Mr. Gascón’s transition team instructing us to report every DA who is disobeying the new policy directives…with case details. It is very sad that the process has become Gestapo-like.” (Emphasis added.)

Deputy Public Defender Tiffiny Townend Blacknell, identified in the story as the recruitment coordinator for her office, is quoted as saying several things in a tweet:

Ever since George Gascon announced his policies I have heard story after story of judges refusing to strike strikes, refusing to accept plea bargains, and refusing to strike special allegations. Before George, these same judges were doing whatever the DA asked them to do!

Some decisions are made by the executive (in a California felony prosecution in Superior Court, the District Attorney) and not reviewable by the judiciary. The decision of what crime to charge in the first place is such a decision. In other matters, the DA can recommend but the judge decides. Judges can dismiss criminal actions “in furtherance of justice” under California Penal Code § 1385(a). In People v. Superior Court (Romero), 13 Cal.4th 497 (1996), the California Supreme Court held that this extended to dismissing an allegation of a prior conviction under California’s Three Strikes and You’re Out law. To “strike a strike” means to dismiss such an allegation, usually one that undeniably true as a factual matter, as a discretionary way of mitigating that sometimes harsh, sometimes fully deserved law.

Under prior DA’s, did judges regularly “strike strikes,” accept plea bargains, and take similar actions when asked to do so by both sides? I do not doubt that they did. Obviously, the defense is always going to agree to actions that reduce sentences, so taking such actions when asked by the DA is, in reality, taking them when asked by both sides.

But now a majority of the voters of Los Angeles County have foolishly elected a District Attorney who does not exercise discretion in asking for such reductions as appropriate in individual cases but does so as a usurpation of the legislative power, effectively nullifying laws duly enacted by the Legislature or by the people themselves.

Ms. Blacknell continues:

So the truth comes out. It’s just the mass human caging that they believe in. It’s not about bowing to the will of the DA, it’s about perpetuating this racist system.

It never was about bowing to the will of the DA. Imprisoning murderers and rapists and robbers is not “mass human caging.” It is justice. California’s prison system is not chock full of harmless people needlessly put there. To draw a prison sentence in California one must either commit a violent crime or commit other crimes of number or magnitude far above the median. The system is not racist. The demographic composition of our prisons reflects the demographic composition of our crimes. Is the system sexist because a very large majority of prisoners are men, even though men are a minority of the population? Of course not. Men commit most of the major crimes. Ms. Blacknell appears to be utterly clueless about truth.

But wait, there’s more:

Now that we know who’s who, it’s time to take action. The people have been voting for measure after measure to reduce the jail prison population, they have voted for a progressive prosecutor who has promised to reduce mass human caging. The only thing standing in the way of the will of the people, is the bench.

It is true that the people voted for Propositions 47 and 57. A huge imbalance in campaign funding is largely responsible for that, but until the people wake up to how they have been conned and fix these laws, they are the law. But no one is trying to nullify them from the bench or from DA’s offices. It is also true that a majority voted for Mr. Gascón, though it is unlikely that most of them fully grasped how drastic his actions would be. The people have definitely not voted to repeal all sentence enhancements. They voted to moderate the Three Strikes Law, not repeal it. Judges refusing to capitulate to Mr. Gascón’s policies where the matter is within their discretion, not the DA’s, is not by any stretch of the imagination “standing in the will of the people.”

The judges are doing exactly what they should do.

One Los Angeles Superior Court judge, who handles criminal matters, said:

“This is crazy what is happening. I, for one, will be following the law which is what is expected of any bench officer, not to bend to the whim of any individual who has a personal agenda. I will follow my Canon of Ethics and look at each case independently and make rulings consistent with the law at issue.”

Another criminal court judge remarked:

“I look at each case individually and follow the law and interest of justice on an individual case basis.”

So what action does Ms. Blacknell have in mind?

Next up, FLIP THE BENCH! We’re keeping a list and checking it twice. It’s time to run some truly progressive judicial candidates in 2022, let’s get it!

So now an employee of a government agency is using the office to gather ammunition for a political campaign. Pretty sure there are laws against that.

Back to the form, from the MetNews article:

The form seeks a “Summary of Case and Issue, including reference to special directive, DDAs, judge’s position, etc.” It asks for the email address, name, and office of the person responding, his or her role in the case with a check box for “Attorney, Court Watch, Family Member, Press, Other,” the defendant’s name, case number, deputy district attorney’s name, the identity of the judge, the department, whether there is a transcript, whether an appeal has been taken or a writ sought, the race or ethnicity of the defendant and gender identity, and any other information.

The story quotes a defense lawyer saying that Ms. Blacknell is gathering the information on DDAs “to meet with a transition committee in the DA’s office about what is happening.”

Former Los Angeles County District Attorney Steve Cooley told the METNEWS:

“The thought of disciplining professional prosecutors who are following the law is astounding.

“Mr. Gascón and his quislings do not know what they are doing.”

He said Gascón’s policies “are wrong and in some cases illegal.”

Mr. Cooley passes the Meatloaf Criterion. Two out of three ain’t bad. The thought is astounding, to put it mildly. The policies are indeed wrong. But I think Mr. Gascón and his henchmen know exactly what they are doing.

[A “quisling,” BTW, is a traitor, taken from the name of a notorious Norwegian who collaborated with the Nazis in World War II. In an edit of this post I decided not to follow Mr. Cooley’s usage of this word.]

So what can be done?

I do not think that deputy district attorneys can defy the policy of the elected district attorney on matters within the discretion of the office. However, on matters requiring the judge’s approval, judges can and should exercise their judgment under the standard of the relevant statute. That would be “furtherance of justice” where PC § 1385(a) is the governing statute.

Victims of crime have a state constitutional right to notice and an opportunity to be heard. (Article I, § 28(b).) The DA’s memos state tersely that these laws should be complied with. Deputy DAs should comply to the hilt.

Deputy district attorneys have a union, which can, should, and doubtless will take a stand about disciplinary matters.

If the other side really does run pro-criminal candidates against judges, that would be an opportunity to educate the people on just how extreme Mr. Gascón‘s policies really are. It could be the beginning of the turning of the tide.

In an extreme case, the California Attorney General has the authority to step in if the law is not being enforced. Of course, that would require a person of sense in the AG’s chair. The probability of the Newsom-appointed successor to the present AG and future HHS Secretary being such a person is not large.

There is no quick fix. This is going to be a long haul. But in the end, I expect that the forces of justice will turn this around.