Dec 21, 2020
by Samuel Dordulian, Esq.
On the day L.A. County District Attorney George Gascon took office I was asked by a local news station to comment on his new special directives. My response was that I feared they were “way too extreme.” In hindsight, given the fallout that ensued through rightful outrage expressed by victims’ families, community members, law enforcement officials, and deputy district attorneys in Mr. Gascon’s own office, it was a considerable understatement. With Mr. Gascon’s latest flip-flop on his own policy reforms, the situation requires a thorough analysis.
Just days ago, Mr. Gascon held a press conference where he was specifically asked why he chose to take a broad-brush approach to sentencing enhancements (instead of applying these unprecedented directives on a case-by-case basis). Gascon claimed that his policies were based on “science” that showed sentencing enhancement’s do not make us safe. In fact, he contended, they may actually increase recidivism.
Only two days later, the science must have somehow changed, as Mr. Gascon announced Friday that he now permits sentencing enhancements for hate crimes, child abuse, elder abuse, sexual assault, and sex trafficking. If his science were solid, one has to wonder, why would Mr. Gascon want to make recidivism worse for crimes involving hate, sexual assault survivors, the elderly, and children?
It should be obvious to any rational observer that Mr. Gascon’s policies are not based on science, but rather politics. Instead of a cohesive and well-thought-out policy focused on the public’s safety, sweeping changes (in the midst of a firestorm, no less) that have never been attempted, let alone proved, are forced upon us while he aims to appease his base. These dangerous directives are a furtherance of policies that failed during Gascon’s tenure as San Francisco D.A., when property crime rose 37%. A 2018 Public Policy Institute of California report confirmed a link between the passage of Proposition 47 – Gascon’s landmark ballot initiative – and substantial increases in property crime and larceny. Despite that inconvenient science, along with objections from multiple different camps, including his own deputy district attorneys, Gascon forged ahead with his directives. Then, the unexpected about-face occurred.
But after capitulating on the issue of blanket sentencing enhancement rejections, one still has to question why it is appropriate to apply enhancements in limited circumstances. Why is the public safer if sentencing enhancements are only applied to certain serious or violent crimes? Shouldn’t all violent crime – on a case-by-case basis – be eligible for sentencing enhancements? In reality, no logical justification or science exists for applying exceptions. Mr. Gascon’s policy rationale, much like his “science,” seems highly selective. Such a lack of understanding is what makes the flagrant bravado and disrespect Gascon exudes all the more intolerable.
Following his amended special directives, Mr. Gascon issued a memo addressed to the “distinguished members of the community.” Those distinguished members of the community are the very people who voiced their outrage at Mr. Gascon’s policies, eventually causing him to deviate from the original directives. They’re also the same individuals Gascon and his spokespeople have been maligning whenever they dare to speak out against such ill-advised reforms. But rather than taking an opportunity to apologize for the hurtful comments, Mr. Gascon simply doubled down. He blamed police unions, private attorneys, and “others with a financial motive” for making “false and salacious statements intending to sow fear and panic.”
How would victims and their families stand to gain financially from protesting or appearing in court to implore a judge to deny Mr. Gascon’s motion to remove sentencing enhancements? How do private attorneys, comprised mostly of former deputy district attorneys like myself working on a pro bono basis, benefit financially from their representations of the victims and victims’ families? Gascon’s team issued a statement alleging that by representing victims’ families I was engaged in a “salacious application of the law” and “actively recruiting new clients.” It’s the sort of comment that normally wouldn’t deserve to be dignified with a response, but because Gascon’s modus operandi seems to always include baseless allegations and fabrications, that pattern needs to be countered.
The truth is that there is no financial incentive in dropping one’s responsibilities pertaining to a private law practice and focusing on representing victims’ families, working pro bono to ensure violent offenders don’t get off with a slap on the wrist. Nevertheless, Mr. Gascon’s special directives are so extreme, so dangerous and unjust, that they forced me, and a number of other private attorneys, to do just that. By instituting his special directives, Gascon placed the needs of victims and their families behind those of the criminals he is charged with prosecuting. He left crime victims without the option to rely on the office that is supposed to achieve justice, forcing them to turn to outside assistance. And they raised their voices appropriately.
We must remember that the concerted efforts of victims, their families, and their pro bono private attorneys are directly responsible for forcing this change. Without the public pressure and outcry, Gascon would still be touting his false science to the public in an effort to explain his dangerous policies. Mr. Gascon’s spurious allegations only prove that he continues to fail to understand what the victims, their families, their pro bono attorneys, and his own deputy district attorneys have been saying all along. In fact, he seems unwilling to even acknowledge their existence.
On the very day he reversed course on sentencing enhancements, Mr. Gascon slammed community members protesting his policies at a press conference. “It’s unfortunate that some people do not have enough education to keep their mouth shut so we can talk,” he said. It was an unhinged response to a woman – whose son was murdered in 2015 – merely voicing her frustration to the special directives. “My son can never speak again because he was murdered … He was kidnapped, tortured, and murdered. My son matters!” she said.
In a quasi-apology, Mr. Gascon said he “did not understand what they were yelling about until later, let alone that they were victims.” After a week of protests, press conferences, and mass outcry from victims’ families, who did George Gascon think was yelling? Who else would have been holding signs demanding justice for crime victims? It’s indicative of an overall lack of awareness on the part of Gascon, as if anyone decrying these inane policies is just some uneducated loudmouth. To Gascon, we’re apparently all at fault for our inability to comprehend his infinite wisdom.
That tone-deafness is further demonstrated by Mr. Gascon’s response to various cases that have been publicized recently, like one involving an infant severely beaten by a caretaker who suffered a traumatic brain injury and is now blind, and another involving a young woman shot eight times in the face by her boyfriend. When these cases were put forth by news outlets as examples for why the blanket approach to sentencing enhancements might deserve reconsideration, Mr. Gascon insulted the media by calling them gullible. He then claimed that the mere mention of such cases amounted to the media promoting “vile and sensational claims about these relatively rare tragedies.” Does Mr. Gascon actually believe that child murder is relatively rare? Is it possible he’s unaware that an entire unit within his own office exists to prosecute these “relatively rare” tragedies? Could he truly believe that domestic violence leading to death is also uncommon? With over 300 murders to date this year alone, I can assure Mr. Gascon that these tragedies involving the murder of a child or domestic partner are anything but rare. They happen with sufficient frequency, and a policy aimed at returning these criminals back onto the streets after a “proportional” amount of time in custody is simply dangerous.
Mr. Gascon attempts to market his policies under the guise of criminal justice reform, claiming the laws, particularly sentencing enhancements, are racist because they impact communities of color. But what Gascon doesn’t understand (or perhaps simply does not care to understand) is that his policy of mass release from jails and prisons will negatively impact those same communities. Affluent communities will not be affected. It will be poorer communities, those of need and primarily populated by people of color who will be most impacted, and undoubtedly see a dramatic increase in crime under Gascon’s policies. The very communities he claims to be helping will be devastated. Orange County experienced a 44% recidivism rate for criminals released from jail early because of Covid-19 (and those were non-violent offenders). How much worse will it be in Los Angeles as Gascon strives to release dangerous violent offenders? Ultimately, Gascon’s policies, not sentencing enhancements, should be called out as racist.
In short, the threat to public safety that exists as a result of Mr. Gascon’s policies can’t be overstated. He attempts to appear sufficiently tough on crime by referencing a 25 to life sentence for the aforementioned murder where a woman was shot in the face eight times. He also likes to cite a 50 to life sentence for a man who decapitated two children. But what he never tells distinguished members of the community is the truth about how long those murderers will actually serve in prison under the new policies.
In his Special Directive 20-14, Mr. Gascon claims that, “sentences we impose in this country, in this state, and in Los Angeles County are far too long.” Accordingly, he then declares, “this Office will reevaluate and consider for resentencing people who have already served 15 years in prison. Experts on post conviction justice recommend that resentence be allowed for all people (not just those convicted as children or as emerging adults) and some experts recommend an earlier date for reevaluating continued imprisonment.”
In other words, according to Mr. Gascon, ALL prisoners, including child murderers and serial killers, should be considered for resentencing after 15 years of prison. Despite the tough on crime act he purports by touting indeterminate life sentences, Gascon actually has a policy granting consideration for resentencing to any murderer who has served only 15 years in prison. What about loved ones whose family member was brutally killed but obtained a semblance of closure in the belief that the murderer would spend the rest of his life in prison? Mr. Gascon has clearly demonstrated that their opinions matter not. Regardless of the impact it may have on victims’ families, he believes that all individuals should be reevaluated in only 15 years. But Gascon’s policies get even more frightening.
He is shutting down the unit tasked to review and appear at parole hearings for eligible prisoners, and has instituted a policy disallowing deputy district attorneys to object to any parole recommendations. Mr. Gascon believes that even a 50 to life sentence involving a murderer who decapitated two children should not only be reevaluated, but no objection can be made by the District Attorney’s Office if parole is recommended for such a heinous individual. Under Gascon’s direction, all murderers, double murderers, and serial killers who have already spent 15 years in prison must be considered for resentencing, and potentially released on parole.
Even if there were no resentencing consideration, is 25 years to life sufficient for a 24-year-old who shoots his girlfriend in the face eight times? Should he be considered for resentencing after 15 years, at the age of 39? Sadly, even if resentencing consideration weren’t granted after 15 years, that 24-year-old will still be eligible for parole when he is only 45 as a result of good time credits. And if Mr. Gascon’s policies hold, there will be nobody from the District Attorney’s Office to oppose his release. Are we, as a society, really okay with that? Is that justice? According to Mr. Gascon, it is. However, if Mr. Gascon didn’t force his deputy district attorneys to dismiss the gun allegations against this murderer in the first place, it would assure that he would never be released back into society.
Mr. Gascon’s lack of understanding regarding murder prosecutions is staggering. He touts the above example as an indication that his policies represent the pinnacle of safety. But it’s incredibly important to remember that Mr. Gascon has never tried a murder case (let alone any case) as a prosecutor. He is completely unfamiliar with the nuances of trying murder cases, and the obstacles prosecutors often encounter. The case example involving the 24-year-old defendant illustrates a monumental problem that prosecutors will undoubtedly face continuously under Gascon’s oversight.
The prosecutor assigned to this case must present sufficient evidence to hold the defendant to a first-degree murder charge. If the requisite intent evidence is insufficient, then the court would reduce this case to second-degree murder. What would happen in that circumstance? The 24-year-old defendant would automatically be eligible for parole after turning 36! Astoundingly, on Friday the prosecutor handling this case actually warned the victim’s family of a potentially inexplicable outcome – if the charge is classified as second-degree murder by the court, and an offer is requested, then pursuant to Mr. Gascon’s policies of giving determinate sentences she would likely offer this murderer a voluntary manslaughter charge. In other words, that 24-year-old who shot his girlfriend eight times in the face could conceivably receive a sentence of either three to six or 11 years in prison.
Considering that Mr. Gascon’s special directives instruct his prosecutors to consider probation whenever a crime is eligible, this murderer would have to be considered for a probationary offer. Mr. Gascon’s policies continue to instruct his deputy attorneys that if probation would not be appropriate, they are to consider the low term permitted under the charge, but not to consider the high term. Therefore, under Mr. Gascon’s ill-advised, ill-considered, injudicious policies, a prison sentence of only three years would be a legitimate possibility for this murderer.
Does anyone truly believe that such a sentence would equal justice?
That is just one example of many demonstrating how essential the option for applying special allegations is when trying serious criminal cases. Once again, if the gun allegations permitted under the law were filed and proved, then the murder conviction would not be as critical. Whether convicted of first-degree murder, second-degree murder, or even voluntary manslaughter, he would still receive an additional 25 years to life for use of a weapon that resulted in the death of a victim. That is why it is so important that gun allegations be fully pled and proved. Not having ever prosecuted any type of case, Mr. Gascon clearly fails to appreciate the complexities of the office he is sadly responsible for leading.
But what is perhaps most concerning about Mr. Gascon is his interpretation of the scope of power within the District Attorney position. His initial amended Special Directive 20-08.01 essentially declares that he has ultimate authority to seek dismissal of all strike prior(s) (or other enhancements) under Penal Code 1385. According to Mr. Gascon’s directive, he has sole authority to “determine whom to charge, what charges to file and pursue, and what punishment to seek” and said power “cannot be stripped from the District Attorney by the Legislature, Judiciary, or voter initiative without amending the California Constitution.” Moreover, the directive declares, “It is the position of this office that Penal Code section 1170.12(d)(2) and Penal Code 667(f)(1) are unconstitutional and infringe on this authority.” Using that interpretation, Gascon then instructs his deputy district attorneys to dismiss all strike priors and special allegations. That is an astonishingly radical position to take given that Gascon must know that courts have already ruled on the constitutionality of the strike statute he complains about (by the California Appellate Court in 1996 in People v. Kilborn, and by the California Supreme Court in 2001 in People v. Roman).
Although it is the responsibility of the courts, not the D.A., to make legal findings of constitutionality, Mr. Gascon has clearly indicated he simply does not care relative to the matter of strike priors. In effect, he is now trampling over both the judiciary and legislative branches. It is not hyperbole to refer to this position as tyrannical, and my fear is that it truly has no bounds. What’s worse, by instructing his deputy DAs to dismiss priors because they are “unconstitutional,” he is literally forcing his own staff to commit illegal and ethical violations. All attorneys have a duty of candor with the court and must always be honest regarding legal authority. Simply stated, our elected District Attorney is committing an illegal act that is downright scary. If Gascon doesn’t respect the authority and position of the courts or the legislature, will there be any constraint on his tyrannical rule? The potential destruction to public safety and the judicial process as a whole is limitless, making the situation at hand truly unprecedented.
As a result, countless deputy district attorneys and law enforcement officials from the LAPD and L.A. County Sheriff’s Department have reached out since the day Mr. Gascon took office, expressing concern for the victims and their families. That’s how I became involved in these cases – law enforcement, like the crime victims, were left with nowhere to turn in the D.A.’s Office. But instead of attempting to start a dialogue with these concerned professionals, taking an opportunity to hear their concerns, Gascon chose to lash out, slandering any individual who did not fall in line. After announcing the controversial special directives, Gascon sent a representative into courtrooms specifically to request transcripts from defense attorneys. In a voice loud enough for all to hear, the representative declared that Mr. Gascon was concerned about insubordination relative to the directives, and required the transcripts to monitor any deviations from his policies on the part of deputy district attorneys – a blatant act of intimidation that reeks of a bully drunk on power, rather than a leader.
That lack of leadership, an indication of what appears to be Mr. Gascon’s true character, is most evident in the way he treats his own team. I worked in the District Attorney’s Office for 13 years, much of which as a sex crimes prosecutor. With the guidance of the District Attorney, L.A. County’s deputy district attorneys make up the largest prosecutorial agency in the nation, and are tasked with the sacred responsibility of protecting our citizens, and ensuring that when crime occurs, justice is served. During my tenure in the D.A.’s office, we were a motivated family, operating in an atmosphere conducive to camaraderie and respect.
The disparity between that work culture and the kind we see today is what makes the personal attacks from Mr. Gascon against his own staff members so disgusting. The spokesperson for Mr. Gascon recently attacked one of his own deputy district attorneys in breathtaking fashion. Mr. Jon Hatami, the renowned veteran prosecutor for the Gabriel Hernandez case that was featured in the Netflix special, had the courage to speak out against Mr. Gascon on national television. In response, Mr. Gascon’s spokesperson called Hatami “delusional” and questioned his fitness to practice law. I find it ironic that while Mr. Gascon claims he is the victim of false and sensational comments, his spokesperson is permitted to personally attack a deputy district attorney within the office he supposedly leads. Instead of addressing the policies that Mr. Hatami criticized, Gascon chose to attack him personally, attempting to sully his previously sterling reputation and character. That kind of unprofessional conduct from any individual is truly despicable. From an elected official chosen to be the Los Angeles County District Attorney, it’s downright repulsive. Angelinos deserve better.
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