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.
McDaniel, who was also convicted on two counts of attempted murder and possession of a firearm by a felon, asserted that jurors at the penalty phase in a capital case can recommend the death penalty only if, in making the requisite finding that aggravating factors exist, unanimously agree on which factors came intro play, and make the finding under a reasonable doubt standard.
Joining with Gascón in the brief were the district attorneys of Contra Costa, San Francisco, Santa Clara and San Joaquin counties, as well as former Los Angeles District Attorney Gil Garcetti. Gascón and Garcetti were represented by counsel and the others represented themselves.
Gascón participated in the Oct. 26, 2020 brief—filed eight days before the election in which he toppled then-District Attorney Jackie Lacey—in his capacity as former San Francisco district attorney.
Cooley said on Saturday, in reference to the brief:
“This undertaking is absolutely inconsistent with the proper and statutory role of a public prosecutor.”
Alluding to Government Code §26540 which provides that “[a] district attorney shall not during his incumbency defend or assist in the defense of, or act as counsel for, any person accused of any crime in any county,” he said:
“Amazingly, the person who would ordinarily enforce the law against a prosecutor representing a defendant is the very person violating that proscription—George Gascón.”
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.”
Judges Express Views
Two Los Angeles Superior Court judges also provided comments, each on condition of anonymity.
“I can envision some unusual circumstances in which” it might be “appropriate for a district attorney to join in an amicus brief in support of a criminal defendant,” one judge remarked, giving as examples supporting “a petition for compassionate release, factual innocence, etc.,” but added: “This current effort, though, doesn’t pass the smell test.”
Another jurist contended that “what Mr. Gascón is doing is a disgrace.