Woke DAs Supporting Murderers

The Metropolitan News-Enterprise has this story on George Gascón and a few other “woke” California District Attorneys supporting the murderer in the recent California Supreme Court case of People v. McDaniel. (See earlier posts on the decision here and here.) The Met is an LA legal paper, so the story focuses on Gascón and the criticism of his friend-of-the-murderer brief by former DA Steve Cooley, among others.

Former Los Angeles County District Attorney Steve Cooley, whose office in 2004 obtained a death sentence for double-murderer Donte McDaniel, has taken to task the county’s present chief prosecutor, George Gascón, for joining in an amicus curiae brief in support of that inmate, whose novel legal proposition, spurned last week by the California Supreme Court, would have resulted in the sentences of about 700 persons being upset.

*      *      *

Cooley said on Saturday, in reference to the brief:

“This undertaking is absolutely inconsistent with the proper and statutory role of a public prosecutor.”

*      *      *

He added that the Los Angeles County Board of Supervisors “is funding this lunacy and other instances of Gascón’s bizarre personnel decisions, retaliation law suits, hostile work environment settlements, and on and on.”

Two LA judges were also critical.

And then there is my comment, in response to the reporter’s question of whether it is unethical for a prosecutor to support a defendant:

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, who filed an amicus brief calling for rejection of McDaniel’s argument, said that support by prosecutors of “a position of a defendant in a particular case, it happens now and then, and sometimes it is justified.” He continued:

“The Attorney General agreed with the defendant in the U.S. Supreme Court in Lange v. California this term, and the Supreme Court agreed 7-2. I cannot say as a blanket rule that agreeing with the defendant is always wrong for a prosecutor. It is not ‘improper’ in the sense of violating any ethics rule.”

“What is wrong in the McDaniel case, in my opinion, is supporting a murderer with a far-fetched legal theory to create a new, pro-murderer rule that the California Supreme Court has considered and rejected many times over decades, a rule that would overturn the well-deserved sentences of hundreds of murderers. That is supporting injustice rather than justice.”

1 Response

  1. Ron Matthias says:

    If a prosecutor believes there is no non-frivolous argument for opposing a criminal defendant’s demand for judicial relief, conceding the point is not only not forbidden but required. (I would question the appropriateness of such a course, however, when the particular DA offering the concession is not acting as the People’s counsel in the matter, but instead seeks to enter the fray as amicus; that strikes me as officious at the very least, and potentially quite problematic. Indeed, if there exists no non-frivolous basis for opposing relief, the People’s counsel would presumably hold that same view and concede the point himself, in which case the amicus-DA’s participation would be superfluous; by contrast, if the People’s representative is not conceding the point, then that’s a pretty indication that there exists an entirely defensible basis on which to resist the defendant’s demand for judicial relief, in which case resistance should be the order of the day.)

    There’s also nothing wrong with a prosecutor believing that an argument or observation advanced by a criminal defendant is persuasive as a policy matter, and if the defendant’s criticisms suggest certain legal reforms—including repeal—should be implemented to meet the defendant’s criticisms, a DA who shares that view might properly urge their adoption legislatively or by initiative.

    But it’s quite another thing for a prosecutor to urge that a court invalidate the death penalty on the strength of constitutional challenges that can be non-frivolously resisted, a category the necessarily includes challenges that have already been rejected by the courts. That would clearly be inappropriate, in my view, whether done by the People’s counsel of record or by a DA seeking to be heard in his capacity as amicus.

    Thus, Gascon is free “to believe,” as he asserted in his brief, “that the death penalty does not make communities safer” and that “it drain[s] limited public safety resources that could be better used on programs that actually improve the quality of life and promote safety for everyone.” These are colorable policy arguments to be made in support of repeal. He is also free to be “deeply troubled by . . . its disproportionate impact on communities of color and poor people.” But these impressions do not compel the conclusion that California’s death penalty regime violates the Supreme Court’s teaching in Furman v. Georgia (a proposition rejected by SCOTUS and the state’s own supreme court) or that it is otherwise unconstitutional on account of its failure to include certain “procedural requirements” (also found by those same courts not to be constitutionally required). Individual DAs are of course also entitled to disagree with settled legal doctrine, but to urge (or to acquiesce in, if in a position to do so) the actual reversal of a criminal conviction based on that disagreement contravenes the duties he owes the People under state law and gravely disserves the cause of justice by denying reviewing courts the full benefit of competitive advocacy upon which its capacity to correctly resolve conflicts depends.