Recusing the District Attorney’s Office

Can an entire district attorney’s office be recused from a criminal case on the basis of a campaign fund-raising letter that calls the defund-the-police movement “wacky” and opposes “anarchist groups”? I would think that opposing anarchy is a job requirement for a district attorney, not a disqualification.

Does it matter if the district attorney has appeared in forums where other people said critical things about a group the defendants are affiliated with? I would not think so. But surprisingly, the Superior Court for San Luis Obispo County, California, recused the DA on just such grounds, and the Court of Appeal affirmed. CJLF today filed an amicus curiae letter brief supporting the DA’s petition for review in the California Supreme Court.

Factual Background

You know things are going badly when a court of appeal begins its opinion with a patent falsehood. “Respondents are college students who face criminal charges for marching through the City of San Luis Obispo following the murder of George Floyd, Jr. in 2020.” Marching is not a crime, and nobody is facing charges for marching.

San Luis Obispo is a medium sized county on the California coast, between Los Angeles and the San Francisco Bay area. There was a demonstration there, as in many places that summer. The march proceeded through town and out onto US Highway 101. The highway is a freeway, where pedestrians are not allowed, and is the backbone highway of the coastal counties. But the defendants are not charged with merely incidentally blocking traffic. Their conduct was more sinister than that.

The charges have not been proved at this pretrial stage, so all we can say is what the pretrial investigation indicates. Evidence indicates that protesters deliberately ran out ahead of cars trying to escape the mess. Defendant ArataWentworth is alleged to have shouted to the group blocking a motorist, “Don’t let him leave until he confesses his white privilege.” She and others are charged with misdemeanor false imprisonment. These facts, in my opinion, warrant a charge of a hate crime: interfering with people’s state constitutional right to travel (see Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1100) on the basis of race. (See Pen. Code, § 422.6, subd. (a).)

It gets worse. One protester shattered the rear window of a car with his skateboard, showering a four-year-old child with shards of broken glass. A witness identified defendant Robert Lastra as the person committing this act. These are crimes against people, and the Court of Appeal’s knowingly false statement that the defendants are on trial for “marching” is a disgrace to the judiciary.

Grounds for Recusal

The defendants sought to recuse the District Attorney’s Office under California Penal Code section 1424, which requires two elements: (1) the existence of a conflict of interest; (2) that would render it unlikely that the defendant would receive a fair trial.  Most cases under this section involve things like personal relationships with defendants or victims, prior representation of them, or a financial interest.

What is the conflict of interest in this case? The Court of Appeal opinion says, “The trial court granted their motion to recuse District Attorney Dan Dow’s office from the case because of Dow’s well-publicized association with critics of the Black Lives Matter movement.” Seriously? Just associating with people who criticize a movement is enough to recuse a prosecutor? The Federalist Society is an organization that is controversial and has critics. Could a member of the Federalist Society charged with a crime have a prosecutor removed from the case merely because he associated with some of those critics?

The “associations” here are quite thin. The Court of Appeal noted that Mr. Dow once appeared on a program hosted by Tony Perkins and then quoted statements that Mr. Perkins made about BLM on another occasion. I have been on lots of shows hosted by a wide variety of people. I certainly do not vet every statement a host has ever made and refuse to go on the show if I disagree with any of them.

The court also noted that Mr. Dow had posted in a certain Facebook group, explaining his decision to charge misdemeanors to people who were angered that he did not charge felonies. The court then proceeded to quote statements other people made to the same group. People say all kinds of overheated things in internet discussions. It is absurd to attribute to one participant the statements of another.

For more on the opinion and why it is not merely wrong but dangerous, see CJLF’s letter brief supporting the petition for review.