When Ethics are an Afterthought

Association of Deputy District Attorneys logo

On February 22, 2023, George Gascón violated the Los Angeles County District Attorney’s Legal Policy Manual when discussing the case of the man arrested for the murder of Bishop David O’Connell. Office policy states that “[I]nformation shall not be released” to the media and public, which includes “Information regarding a confession, admission or statement” made by the defendant. Despite the policy prohibition, Gascón discussed the alleged confession made by the defendant.

Not only does office policy forbid the statements made by Gascón, the State Bar Rules of Professional Conduct prohibit prosecutors from making out-of-court statements they know will be publicly disseminated and that have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. Comments to the ABA rule, on which the California rule is based, singled out revealing the existence or contents of a confession as misconduct because it is likely to have a material prejudicial effect on future proceedings.

These fumbles concluded a rocky week for Gascón, as earlier in the week, he was forced to take the stand and testify in a lawsuit accusing him of retaliating against Deputy District Attorney Shawn Randolph after she told him some of his “reform” efforts were unethical and illegal.

Gascon testified under oath that the policies he implemented were all legal, notwithstanding the rulings of a Superior Court and California Court of Appeal that some of those policies violated the law and forced prosecutors to violate their ethical obligations if they followed them.

This will be the first of many trips to the stand for Gascón, as there are currently nine separate lawsuits brought by Deputy District Attorneys alleging retaliation by Gascón after they questioned or criticized his policy directives.

Whether it be office policy, state bar rules of professional conduct, or civil service rules, Gascón continues to violate one rule after another, guided not by the law or ethics, but by ideology and politics.


Convicted gang murderers commit new crimes

Association of Deputy District Attorneys logo

By Kathleen Cady

Los Angeles County District Attorney George Gascón’s blanket Youth Justice policy mandated that several “former minors” who were convicted by a jury of gang murder and sentenced in criminal court be released. In less than one and a half years, two thirds of these convicted murderers have been charged with new felonies.

These convicted murderers, who were 16 or 17 at the time they committed their crimes, were released after serving only a fraction of the time of their original sentence. Because of the passage of Proposition 57 in 2016, some former minors were sent back to juvenile court by the Court of Appeal, with directions to hold a retroactive “transfer” hearing to determine whether their conviction should have been in juvenile court or criminal court. Gascón did not conduct any of these transfer hearings. The result is that these defendants who were convicted of gang murders, sometimes of multiple murders, were released back into our communities having served only a few years in custody. In all these cases, the former minors were released without any assurances that they received rehabilitative services, nor any evaluation as to their current dangerousness. Some of these former minors had subsequent convictions for crimes of violence they committed while in custody.

It is unknown exactly how many of these cases there were because the District Attorney’s Office has not provided that information, but a declaration under penalty of perjury filed by someone in the DA’s administration stated “there were approximately eight to ten former minors who had already been sentenced in adult court, but were conditionally remanded to juvenile court” for a transfer hearing.

The law recognizes that the juvenile justice system is not the appropriate place for some 16- and 17-year-olds who commit exceptionally heinous and brutal crimes. This legal procedure for a minor to be prosecuted in criminal court is triggered by the prosecution filing a transfer motion. (Welfare and Institutions Code 707). This procedure provides a judicial safeguard to ensure that only those minors who can’t be rehabilitated in the juvenile system are transferred to criminal jurisdiction.

At least six of these former minors were released in the summer or fall of 2021. All were in their 20’s and now have the street cred gangs give to people who’ve served time in prison. Two were not released: one convicted murderer was not released because he was serving an 8-year sentence for assault on a prisoner in a different county; and one was not released because he was pending new charges of attempted murder committed while in custody.

Of the six convicted murderers who were released, four have been rearrested. One is now charged with a new murder; one is now charged with felon in possession of a gun, evading police and drug charges, and two convicted gang murderers are now charged with felon in possession of a gun. Gascón claims to rely on “data and science.” What the data reveals from this group of convicted murderers is that 66% have been re-arrested and are now charged with murder or having guns . . . again. Only two have not been re-arrested. Below is a summary of the defendants who were released and have been rearrested:

Victor Bibiano and another gang member were convicted by a jury of the 2009 murders of Justin Curiel and Javier Zamora. An additional victim was shot but survived. The jury found that the defendants committed the murders for the benefit of the gang and Bibiano used a gun. The Court of Appeal sent the case back for a retroactive transfer hearing, which the District Attorney’s Office did not conduct. Because of that, Bibiano was released after only 12 years in custody after murdering two people for the benefit of his gang.

Within a few months of being released, Bibiano was arrested and convicted of spousal abuse and then released. A few months after being released on spousal abuse, Bibiano was arrested and charged with a different codefendant of murdering Mario Rodriguez on April 16, 2022. Because Gascón’s policies do not allow gang allegations, it is unknown whether this new crime was committed for the benefit of the gang. Bibiano remains in custody on murder charges. Although the law allows for Special Circumstance of multiple murders to be charged, Gascón’s policies do not, so if Bibiano is convicted, his sentence will effectively be the same as a person who has not previously murdered two people.

Jairo Bustamante aka “Hunter” and Juan Solano Sanchez were codefendants in the 2011 murders of Franklin Munoz and Israel Salinas. Bustamante was convicted by jury of murder of Salinas and voluntary manslaughter of Munoz three days earlier. A jury convicted Juan Solano Sanchez of the murder of Munoz. The jury found the gang allegation true and that they both committed the killings for the benefit of their gang. Bustamante had a prior robbery juvenile conviction. While in prison, Bustamante was convicted of arson. While in prison Solano was convicted of felony battery. The Court of Appeal sent the case back for a retroactive transfer hearing, which Gascón’s office did not conduct. Because of that, Bustamante and Solano were released after spending only 10 years in custody.

On 2/14/2022, Solano Sanchez was arrested and charged for felon in possession of a gun. On 10/20/2022, Bustamante was arrested and charged with felony in possession of a gun. Despite the fact that both are convicted gang murderers who used a gun and are now pending charges of felon in possession of a gun, they both remain out of custody. Gascón’s Pretrial Release policy and his belief in the unfairness of cash bail is responsible for Bustamante and Solano Sanchez still being out of custody.

Andrew Cachu was convicted of the 2015 murder and robbery of Louis Amela. The jury also found the crimes were committed for the benefit of Cachu’s gang. The Court of Appeal sent the case back for the District Attorney’s Office to conduct a retroactive transfer hearing, which the District Attorney’s Office again did not conduct, resulting in Cachu being released after only 6 years in custody. Within a few months, Cachu was arrested and is charged with evading police, being a felon with a gun, possessing cocaine and methamphetamine for sale and driving under the influence. Cachu remains in custody.

More than a year after issuing his blanket policies, and after several public fiascos, Gascón modified his Youth Justice policy stating, “in exceptional circumstances, criminal jurisdiction may be appropriate for youth offenders.” His change in policy is little solace to Bibiano’s newest murder victim.

Gascón’s policies threaten public safety and are directly responsible for dangerous defendants being out of custody who have hurt fathers, mothers, daughters and sons. A lawsuit has been filed against Gascón claiming that he is responsible for the deaths of El Monte police officers. But for Gascón’s policies, our communities would be safer. Convicted gang murderer Bibiano would not have been released from custody and Mario Rodriguez would still be alive. Convicted gang murderers Cachu, Bustamante and Solano Sanchez would not have illegally obtained more guns and committed new crimes.

Gascón’s policies help criminal defendants and disregard victims and public safety. Unfortunately for the residents of Los Angeles County, as long as Gascón’s policies remain in place, gang members are empowered, and our communities continue to suffer.

Kathleen Cady is one of several former prosecutors who are providing pro bono assistance to crime victims in response to Gascón’s policies.

A Victim Asks Gascón: ‘How Dare You Make Me Do Your Job?’

Association of Deputy District Attorneys logo

By Kathleen Cady

In 1991, when Jamie S. was 13 years old, she was kidnapped, raped and sodomized by Danny Brown while walking to her junior high school.  In 1991, Jamie S. and her family could rely on the governmental agencies responsible for investigating and prosecuting Brown. In 2022, that radically changed when Los Angeles County District Attorney George Gascon abandoned Jamie S. Although prosecutors in every other county attend parole hearings with victims, Gascon’s policy is that prosecutors in his office may not, so Jamie S. attended the parole hearing of her rapist without a prosecutor, where she had to advocate for herself and for public safety.

Brown kidnapped Jamie S. and two other middle school students and sexually assaulted them in 1991. The police did their job and investigated Brown’s crimes. The Los Angeles County District Attorney’s Office did its job and prosecuted Brown.  A jury convicted the defendant because Jamie S. and the other victims bravely agreed to testify against Brown, trusting the DA’s office to seek justice and protect the public. Brown, who already had a prior record, was convicted by a jury of three counts of kidnap, nine counts of rape, one count of sodomy and one count of forcible sexual assault on a child under 14. Brown was sentenced to 107 years in prison. At the time of sentencing, the judge said the case was “a parent’s nightmare. They send their kid to school in the morning to go on the bus to school or to walk to school and the defendant who is obviously a sexual predator on children – takes them and assaults them. . . . [T]he events were planned and premeditated. They were not impulsive. There were threats to kill. . . . He had brought with him [duct] tape at least on one instance. . . . [The children] were violated in person, spirit, in addition to their bodies being violated.”

Victims have a Constitutional Right to justice and due process. California Constitution Article I, Section 28(b).  Los Angeles County District Attorney Gascón’s policies violate the Constitution and failed Jamie S. by deserting her when she needed protection most.

Jamie S. has a question for Gascón: “How dare you issue a policy that abandons me at the parole hearing of my rapist?” How dare you abandon your legal responsibility to be the sole representative for the People of the State of California at parole hearings? Penal Code section 3041.7. How dare you forbid trained and experienced prosecutors from reviewing the defendant’s prison record, asking clarifying questions and giving a recommendation about whether the defendant should be paroled? Cal. Code of Regs., title 15, Section 2030(d)(2). How dare you make me be responsible for the safety of myself and my family and other school age children? 

About one month before the parole hearing, Jamie S. received a letter from the prison notifying her of the parole hearing which started her reliving the nightmare all over again. Her 13-year-old self-resurfaced. All of the things she had suppressed came back with a vengeance. She thought he would never get out of prison.  She could not believe that the man who had been sentenced to 107 years in prison for violently sexually assaulting 3 young girls was eligible for parole after only 31 years in prison. 

At the parole hearing when Jamie S. saw the man who kidnapped and raped her when she was 13, she started crying, ran out of the room and threw up. Despite this, she chose to continue on at the parole hearing so that the parole commissioners and the defendant would hear her voice and know how the defendant’s actions affected her life. Jamie is a survivor and wanted the Parole Board to know that Brown should never be released from prison. 

Victims have a right to attend and speak at parole hearings of their offender. Penal Code Sections 3043(b)(1) and 3043.6. Victims have a right to have their safety and the safety of the general public considered before the defendant can be paroled. California Constitution Article I, Section 28(b)(15) and (16).  Victims also are entitled to victim services. Penal Code Section 13835.5. Although Jamie S. did have the assistance of a victim advocate, victim advocates aren’t prosecutors. Victim advocates do not have access to the defendant’s prison record, nor does the advocate have the legal authority to oppose parole, leaving Jamie S. alone in opposing parole. 

During the parole hearing Jamie S. heard the defendant as he recounted his crimes. “The first [kidnap and rape], it was by chance. . . I wanted her to hurt, pain. I looked around and I said, I can get away with it. And that’s how I tapped the first one . . . (“tapped” is urban slang for having sex). The first one, it was exciting. I was in control and empowered and it was a tension release. It did feel good. And I wanted to catch that high again, that feeling again. And since I got away with it for the first time because of the way I was thinking, I said I could get away with it a second time. It would be easy. I went back to the same area. This time looking, planning to do this.” He attempted to excuse his actions saying that young girls in his neighborhood were “aggressive” as if that made it ok to kidnap and rape young girls on their way to junior high school.

So why was the defendant who had been sentenced to 107 years in prison up for parole after only 31 years? Because in 2017 legislators in Sacramento passed Elder Parole (Penal Code 3055) which guaranteed every person over 60 years old who had served over 25 years in prison a parole hearing. Apparently that wasn’t good enough, because in 2020, AB 3234 (Ting) amended Penal Code section 3055 and allowed every person who is over 50 years old who has served more than 20 years in prison to get a parole hearing. So, serial child molesters, serial rapists, serial murders who are over 50 years old get a parole hearing after only 20 years in custody. Brown is now 57 years old, so he qualified. Jamie S. has something to say to California legislators: “What were you thinking? What made you think that a serial sexual predator should get a parole hearing before serving his full sentence?” 

On October 6, 2022, the Parole Board denied Brown parole for 5 years. He’ll be eligible for another hearing in 2027. Before that, however, he can petition to have his parole hearing advanced.

In addition to the unspeakable trauma from the inmate’s sexual assault, the circumstances of the parole hearing caused Jamie S. untold anxiety because of the absence of a prosecutor. After the parole hearing she had nightmares about Brown, just like she had years ago. This has not deterred her, however. She is determined to assert her Constitutional right to attend Brown’s future parole hearings and speak against his being released because she believes he will harm other young girls. She just hopes that at the next parole hearing a prosecutor will be there to do their job: represent the People and protect the public.

Jamie S. has chosen to share her story to highlight the injustice and dangerousness of Gascón’s policies.

Kathleen Cady is one of several former prosecutors who are providing pro bono assistance to crime victims in response to Gascón’s policies.

Dealing with ‘Internal Terrorists’

Association of Deputy District Attorneys logo

By Eric Siddall

“Internal terrorist” is an old LAPD management term used for those who don’t “get with the program.” Much has changed within LAPD, but not for some of its alums.

One in particular, George Gascón—former LAPD brass—used the antiquated term during his campaign for district attorney. When asked how he would work within civil service rules to implement his agenda, he was not concerned. “I know certainly how to deal” with “internal terrorists.” He wasn’t lying.

Since Gascón took office on December 7, 2020, those who question his policies are deemed internal terrorists. “To deal” with them or their views, he has employed methods that violate California’s criminal and labor laws. Yet, even when a court has ruled against him, there is little consequence to these actions. For every lawsuit responding to his actions, for every complaint, for every hearing, there is an unlimited litigation budget paid for by L.A. County taxpayers. This enables him to ignore the law, while fighting it off with high-priced, taxpayer-subsidized lawyers.

In December 2020, the Association of Deputy District Attorneys sued Gascón to enjoin him from violating state criminal statutes. Gascón spared no taxpayer dollar to defend his novel position that the executive branch has the power to ignore the other two branches of government. After the superior court judge ruled against him, Gascón hired the nation’s most expensive litigator. We still don’t know how much this case cost the taxpayers.

Meanwhile, because of a byzantine labor system, Gascón has played a game of siege warfare. He wantonly flouts civil service rules, violations pile up against him, but, because he has access to unlimited taxpayer money, a lawful remedy for these violations can be held at bay by using litigation tactics that cause endless delays. Normally, delay tactics cost money, but when you never see the bill, it doesn’t matter.

This is how you deal with “internal terrorists.” You hold the system hostage with endless delays. These delays make a mockery of our civil service system and the county charter which were designed in response to the graft and political cronyism that infected many eastern cities in the nineteenth century. Abuses like the Tammany Hall ring that used government jobs and taxpayer money to reward political patronage in New York inspired many of our current good government policies. In one instance, “Boss” Tweed and the Tammany machine pocketed the equivalent of half a billion dollars (adjusted for inflation) on one county courthouse project.

Our current system—for all of its flaws—was designed to protect against graft and cronyism while ensuring that political leaders could still carry out their mandates. The elected leaders just have to act within the parameters of the law.

The L.A. Times editorial board—knowing these rules—advised Gascón accordingly: “To implement his agenda successfully, he will have to win over his office with the power of persuasion and an appeal to his prosecutors’ professionalism.” They were right, under the civil service rules, persuasion and professionalism were the right vehicle for change, not fiat.

But rules are inconvenient. They require negotiation, patience, and consensus building. So, rather than working within the rules, Gascón, a veteran of the old Daryl Gates LAPD school of management, manipulated and sometimes even ignored them. He rewarded political allies who helped him in the campaign. He dismissed criminal charges against a political ally. Backroom deals were cut. He retaliated against those who questioned his orders. He refused to comply with California’s Public Records Act. His first retaliation order cost taxpayers over a million dollars to settle—and that didn’t include attorney fees. As he promised, he knew how to deal with internal terrorist.

Despite being limited by the county charter to six political positions, he rewarded political supporters by moving them into civil service protected positions. Under normal circumstances, a vacant government position requires a job posting that outlines the qualifications the candidate must possess to apply for the position. This good government practice ensures that through open competition, qualified candidates will fill open positions.

Gascón ignored this practice. Instead, he hand selected deputy public defenders who were political supporters, or friends of political supporters, to fill civil service prosecutor positions without the normally mandatory public job listing or requisite exam. This not only violated civil service principles, but, at a time when deputy public defenders were complaining about their workload, it took frontline defense lawyers out of their ranks into the district attorney’s office. Nor did this transfer assist the urgent need for trial attorneys, since it seems most of these deputy public defenders were promised that they needn’t prosecute most types of crime.

While the hiring of his political allies is being challenged before the Civil Service Commission, Gascón continues to stall a final decision by the commission by throwing up road blocks and filing frivolous motions that fly in the face of open and transparent government. And because he has unlimited resources (read taxpayer money) these motions are routinely filed and summarily rejected.

His latest venture is aimed at intimidating newly hired deputy district attorneys. For decades, newly hired deputy district attorneys were placed on probation for a year at a reduced salary. After the first year, they were evaluated by their supervisors. If they passed probation, they were automatically promoted, given a salary increase, and civil service protection. If they didn’t pass probation, they were fired. The system was designed to make sure that candidates had the required prosecutorial skills and temperament before given a permanent job.

Legally, any change to this practice requires negotiation with the union. Gascón conveniently ignored that rule. Without any notice, he ordered newly hired deputy district attorneys to take an exam that doesn’t contain one question testing prosecutorial skills or temperament. There is no known legitimate purpose for this exam. In fact, when one of the new hires questioned whether the exam would be used for their promotion, the answer from Human Resources Division was, “no.” So what is the purpose of the exam? The answer may lie in the test questions themselves, more than one of which reportedly ask the test-taker about their loyalty to the employer.

Even more problematic, we are unaware whether the test addresses concerns of racial disparity. For example, the University of California recently abandoned standardized testing for admissions because of concerns with “racist metrics.” Does this test cause racial disparity? Gascón has refused to meet and confer on these real concerns.

This brings us back to how you deal with “internal terrorist.” It seems Gascón has the answer to that one: flush out your political enemies and reward those who show allegiance.

Eric Siddall is Vice President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing over 800 Deputy District Attorneys who work for the County of Los Angeles. His commentary above was published in the Metropolitan News-Enterprise on November 8, 2022.

State Legislators Freed Man Who “Should Never Be Allowed Into Society.” He Is Now Accused Of Murder in Sacramento.

Association of Deputy District Attorneys logo

By Michele Hanisee

This past Sunday, a rapist who was released from prison decades early because of 2018 legislation was arrested for murdering a 60-year-old man who worked at a Sacramento board and care facility. Michael Xavier Bell, who is now 36 years old, had been out of custody for just 73 days.

We wrote about Bell in 2018. Back then, he was serving a state prison sentence for breaking into a woman’s home and, once inside, raping her at gunpoint in front of her 8-year-old son. Bell and an accomplice took turns committing sexual assaults, at times pointing a gun at the victim’s head and at times pointing the gun at the victim’s 8-year-old son, forcing him to watch.

When the crime occurred in December of 2000, Bell was just nine days shy of his 15th birthday. He was tried and convicted as an adult in 2002, and sentenced to 53 years to life in prison. He was so dangerous and unrepentant that the sentencing judge stated: “It is this court’s intention this defendant never, never get out of prison. This defendant is incapable of being rehabilitated. This defendant is not someone who should ever be allowed into society.”

But Bell was allowed back into society thanks to SB 1391, which prohibited prosecutors from charging 14- or 15-year-olds as adults unless they first held a hearing at which a judge concurred that the minor should be treated as an adult.

Governor Brown and the state legislature, including current appointed Attorney General, Rob Bonta, ignored impassioned pleas about how dangerous this legislation was to public safety. In fact, there were no safeguards created within this legislation to protect the public from the most dangerous juvenile offenders such as Bell. Nor was there any mechanism for addressing the retroactive effect on convicted juveniles, like Bell, who had since become adults and who therefore could not be returned to the jurisdiction of the juvenile justice system. This is why Bell was released from custody without any form of supervision, or services and apparently without having received any type of sex offender treatment or rehabilitation.

Nor was Bell a model prisoner. According to records filed with the court, he was twice convicted of new felony battery cases while in prison and had numerous disciplinary write-ups wherever he was housed. In his last years of incarceration, he was charged and convicted of felony vandalism of government property for smashing the windows of the visiting area. He was even written up for the rape of another inmate.

Twenty years ago, a Los Angeles County Judge presciently determined that Michael Bell “is not someone who should ever be allowed into society.” Sadly, our state legislature and Governor Brown opened a back door to let him, and others like him, out of custody without services, supervision, or the hint of rehabilitation. The outcome was tragically predictable: another senseless murder of an innocent victim.

Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing over 800 Deputy District Attorneys who work for the County of Los Angeles.

Gascón Rolls Out the Welcome Mat for Drug Dealers

Association of Deputy District Attorneys logo

By Kathleen Cady

In February 2021, 16-year-old, straight-A student Sammy Berman Chapman asked his dad for a cheeseburger. An hour later his mom, TV therapist Dr. Laura Berman, went into his room in their Santa Monica home to talk with him about a summer internship and Sammy was dead – poisoned from a single Xanax pill, illicitly manufactured and laced with fentanyl. Sammy had been feeling isolated throughout the pandemic and ordered the pill from a brightly colored menu of “prescription” drugs on Snapchat and had it delivered to the house. What Sammy didn’t know is that the pill he bought on Snapchat was spiked with fentanyl.

On September 16, 2021, 20 year old Daniel “Elijah” Figueroa died after taking a fake Xanax laced with fentanyl. Elijah, who had been having trouble sleeping, purchased what he believed was Xanax or oxycodone from “Arnoldo” on Snapchat. A bottle of 15 pills was delivered to his grandmother’s Long Beach house, where Elijah had been staying while waiting to start community college. After his death, Elijah’s family found that only one pill was missing from the “pharmaceutical” bottle.

These counterfeit pills look exactly like real oxycodone or Xanax tablets, but contain fentanyl, a synthetic opioid so potent that one counterfeit pill can kill. People, and more specifically children, can’t buy these illicitly manufactured drugs at a pharmacy, but in the two tragic cases above Snapchat facilitated Sammy’s and Elijah’s contact with and delivery from drug dealers.

In January 2021, the LA County Department of Public Health reported a 48% increase in accidental drug overdose deaths during the first five months of the pandemic compared to the same time period in 2019, with the highest accidental drug overdose death from methamphetamine and fentanyl. In California, a young person under 24 is now dying every 12 hours because of fentanyl poisoning. Nationally, drug overdose deaths among high school-aged teens have more than doubled since 2019, driven by a rise in the deadly opioid fentanyl, according to a more recent UCLA study. The issue is so prevalent that Drug Induced Homicide was formed to support families of victims who have died from unknowingly ingesting fentanyl. This group held a “Blood on His Hands” Rally on March 23, 2022, as a peaceful protest against Gascón’s policies of not holding drug dealers accountable for the death and destruction they caused.

When someone gives an unsuspecting victim poison and the victim then dies, that person can be charged with murder. Penal Code §187. It’s similar to charging murder when a person has been informed of the dangers of drunk driving, and then kills someone while driving under the influence. Doing something you know is dangerous with conscious disregard of the danger is a legal definition of second degree murder. People v. Watson (1981) 30 Cal. 3d 290.  Prosecutors in many jurisdictions charge fentanyl drug dealers with murder or manslaughter when they sell drugs under the same theory. But not Gascón. He won’t charge drug dealers who knowingly sell death to unsuspecting teens, regardless of the evidence. Gascón’s former special advisor Alex Bastian stated, “We have been down this road before: we know that increased penalties for drug offenses do not save lives.”

Really? Common sense tells us that when drug dealers are in prison, they can’t sell drugs to kids, so our communities are safer. Increased penalties actually do save lives.

Unfortunately for the people of Los Angeles, Gascón doesn’t believe in increased penalties for anyone, including drug dealers. If they are charged at all, they will only be charged with minimum charges and no enhancements. Gascón’s policies have been implemented throughout the county in every courthouse. One example highlighting the absurdity of Gascón’s policies is Freddie Garcia.

On May 14, 2021, police served a warrant in Garcia’s Long Beach apartment and recovered over 2 kilos of fentanyl, over 2 kilos of methamphetamine, over 200 grams of heroin and over 120 grams of cocaine. They also recovered three guns and ammunition. In addition, three digital scales, a money counter, a ledger for the sale of drugs, and over $250,000 cash was found in Garcia’s apartment. The amount of fentanyl alone could likely kill hundreds of people. All this in an apartment right next to common living space with families and children, exposing them to danger from rival drug dealers, guns, violence and the deadly drugs themselves.

Freddie Garcia, 40 years old, has a long criminal record for selling narcotics starting when he was 15 years old. He has six convictions for sales of narcotics or possession for sales of narcotics. He also has a conviction for being a felon with a gun, multiple theft convictions and a conviction for domestic violence. He’s been to prison four times, the last time in 2017 for 6 years.

When drug dealers have kilos of illegal drugs and caches of guns they can receive longer sentences because of the danger they pose to our communities.  Because Garcia had over 2 kilos of fentanyl and over 2 kilos of methamphetamine, he could be charged with a weight enhancement requiring him to be sentenced to additional time in prison. Health and Safety Code §11370.4(a)(1) and §11370.4(b)(1). Because Garcia had three guns he could be charged with an armed enhancement requiring him to be sentenced to additional time in prison. Penal Code §12022(c). Gascón’s policies, however, do not allow prosecutors to file legally available allegations against drug dealers for weight enhancements or being armed with guns. “It shall be the policy of the Los Angeles County District Attorney’s Office that the current statutory ranges for criminal offenses alone, without enhancements, are sufficient to both hold people accountable and also to protect public safety.”  Prosecutors in the Long Beach DA’s office requested permission from Gascón’s administration to add the allegations under his “extraordinary circumstances” exception based on the danger presented by Garcia and his huge fentanyl stash and guns. In response, prosecutors were told that there are no exceptions to the prohibition to filing the gun and weight allegations in drug cases. Shockingly, this means that under Gascón’s policies armed narcotics traffickers caught with hundreds of kilos of drugs are facing precisely the same punishment as the unarmed seller of a $20 rock of cocaine – no exceptions.

Can it get worse? We don’t know. Garcia’s attorney is asking for probation and a drug program. Because the weight and armed allegations haven’t been charged, Garcia could legally be sentenced to probation. Gascón’s policies also mandate that if a defendant can be sentenced to probation, the people have to offer probation, absent extraordinary circumstances. So, Gascon’s policies could result in Garcia, a several time convicted felon who has been to prison 4 times who had three loaded guns and 4 different types of drugs for sale in substantial quantities, getting probation. This is outrageous.

Illegal drugs kill people, relationships and careers. Drug dealers pedal in death and profit from addiction. They sell it every day. They don’t care about hooking children on cocaine, heroin, methamphetamine or fentanyl. They don’t care if people die from the poison they sell. Parents of children who die from unintended fentanyl overdoses, like Dr. Laura Berman, Sam Chapman and Perla Mendoza know this only too well. Sammy’s parents and Elijah’s parents have channeled their unimaginable grief to demand Snapchat and other social media platforms change their policies and allow parents to have more control over their children’s on-line activity. Elijah’s mother, Perla Mendoza, founded Project Eli to warn parents, teens and young adults about the dangers of drug use and illicit fentanyl. Parents of 20-year-old Alexandra Capaluto, who died after purchasing a counterfeit Oxycodone pill laced with fentanyl on Snapchat, have sponsored legislation which would require convicted drug dealers to be given the following warning: “You are hereby advised that the illicit manufacture or distribution of controlled substances, either real or counterfeit, inflicts a grave health risk to those who ingest or are exposed to them. It is extremely dangerous to human life to manufacture or distribute real or counterfeit controlled substances. If you do so, and a person dies as a result of that action, you can be charged with voluntary manslaughter or murder.” Although the proposed legislation is not yet law, several California district attorneys have embraced this admonition for convicted drug dealers in their individual counties – but not Gascón.

With Gascón as Los Angeles County’s District Attorney, drug dealers in Los Angeles County need not worry about being charged with enhancements for having a lot of drugs or guns. They also apparently don’t need to worry about being held accountable for poisoning children with fentanyl because Gascón mistakenly believes “increased penalties for drug offenses do not save lives.” Perhaps Gascón could consider that keeping drug dealers in custody for longer periods of time protects children and our community. As Dr. Laura Berman so eloquently stated, “If it helps one kid, it’s worth it.”

Kathleen Cady is one of several former prosecutors who are providing pro bono assistance to crime victims in response to Gascón’s policies.

“Progressives” Advance Misleading Arguments To Attack Recent Court Decision

Association of Deputy District Attorneys logo

By Eric Siddall, Vice President, Association of Deputy District Attorneys

On August 12, 2022, the Los Angeles Times published an editorial by Erwin Chemerinsky, Gil Garcetti, and Miriam Aroni Krinsky. The article criticized a recent state court appellate decision that ruled that District Attorney George Gascón violated California state law when he ordered his deputies not to follow California’s Three Strikes law.

No one at the Los Angeles Times wrote the piece, but a quick fact check would have turned up a slew of egregious mischaracterizations.

The piece begins with four examples of defendants sentenced to 25 years to life for stealing. These cases serve a rhetorical purpose; the stories inspire righteous outrage. As the authors noted, they are “heartbreaking and should trouble us all.” And they should. One defendant, Vincent Rico, “went to prison for life for stealing two pairs of kid’s shoes.”

But there is one crucial problem: these powerful vignettes are not based on current state law. Not one case was tried, pleaded, or convicted after 2012. In 2012, voters passed Proposition 36 modifying California’s Three-Strikes law to correct the injustices that happened to all four men cited in the editorial. Today, not one of the men cited by Professor Chemerinsky, Dean of the UC Berkeley School of Law, could be sentenced to 25 years to life.

It is ironic that these claims appear under the Times’ masthead, since it was the Timesthat endorsed the change this opinion piece ignores. In fact, the Times favorably noted that “Proposition 36 would require that the third strike be serious or violent as well to trigger the 25-years-to-life term. The measure is tailored to ensure that the worst bad guys remain behind bars for a very long time.”

Shamelessly (or laughably), one of the defendants cited in the article was sentenced to life in prison by one of the article’s authors, former Los Angeles County District Attorney Gil Garcetti. Fortunately, that defendant was released in 2009 by the man who defeated Mr. Garcetti, Steve Cooley.

In fact, Mr. Garcetti’s track record exemplifies the injustice wrought by Three Strikes before the 2012 reform. When he was the district attorney, he ordered line-prosecutors not to use an ounce of prosecutorial discretion on this law. His orders resulted in men like Mr. Rico being sentenced to outrageous sentences. Maybe that is one reason that Los Angeles voters ousted Mr. Garcetti by a resounding 64 percent in favor of a candidate who promised to end Mr. Garcetti’s draconian policies.

Another serious flaw – one that a simple fact check would have resolved – is authors’ reliance on a single study to support their bold claim that “research has shown that lengthier prison sentences actually increase recidivism rates and make it harder for formerly incarcerated people to successfully reenter society.”

The single study cited in this editorial, as well as in legal briefs filed by Professor Chemerinsky and Mr. Gascón, never concluded that lengthy sentences increase recidivism among serious or violent offenders. In fact, the study’s author wrote: “This study cannot provide any evidence regarding potential general deterrent effects of incarceration.”

However, the study cites several other studies that provide direct evidence supporting incarceration’s deterrent effects. Competent analysts would incorporate these peer-reviewed studies into their editorial, rather than cherry-picking one study that aligns with their priority – and even a close reading of it undermines their interpretation.

Worse still, the editorial stresses that there is no evidence that Three Strikes made us safer. This is a clear mischaracterization. For instance, “Does Three Strikes Deter? A Non-Parametric Estimation,” by Professors Eric Helland and Alexander Tabarrok, examines over a decade of data on California’s Three Strikes law. They discovered that Three Strikes reduced new arrests among second strikers by 20%. This work appeared in a leading peer-reviewed economics journal, the Journal of Human Resources. It has been cited nearly 250 times, including in Professor Mueller Smith’s paper, the very one cited by the editorial.

The editorial also inexplicably ignored a recent study by the United States Sentencing Commission, a bi-partisan, independent federal judicial agency. There were two key findings (quoted below):

  1. The odds of recidivism were approximately 29 percent lower for federal offenders sentenced to more than 120 months incarceration compared to a matched group of federal offenders receiving shorter sentences.
  2. The odds of recidivism were approximately 18 percent lower for offenders sentenced to more than 60 months up to 120 months incarceration compared to a matched group of federal offenders receiving shorter sentences.

Erwin Chemerinsky, Gil Garcetti, and Miriam Aroni Krinsky ideologically reject sentencing mechanisms, like Three Strikes, that are narrowly tailored to mete out longer punishment to those who continue to reoffend and break the law. They are entitled to their political views. They are entitled to argue that the law is not just. But, when they lie about facts, when they distort academic studies, and when their editorial is published without examining the purported evidence, then we hit troubled waters.

About The ADDA

The Association of Deputy District Attorneys (ADDA) is the collective bargaining agent and represents over 800 Deputy District Attorneys who work for the County of Los Angeles.

ADDA Statement Regarding Gascón Appealing Ruling that Voided His Directive Against 3-Strikes Allegations

Los Angeles, July 15, 2022 – Last month, a unanimous Court of Appeals panel reminded George Gascón that “[h]e is an elected official who must comply with the law, not a sovereign with absolute, unreviewable discretion.” He obviously disagrees with that basic premise.

Now he has appealed that ruling because he believes separation of powers is a “dangerous precedent” and because he is convinced that the rule of law doesn’t apply to him.

He demands the unprecedented authority to act as both the executive and the legislative branch. He believes his election is a mandate from the voters that vests him with unlimited power to impose his personal ideology, even when doing so means disregarding the will of the voters, the legislators, and the governor who enacted the three strikes laws.

He insists on treating first time offenders and repeat offenders the same. Yet the “science and data” on which he relies dissolves under basic scrutiny.

The public should recall that he ran on the promise that his policies would deliver safer communities. Now he denies responsibility for the rising crime that is affecting all our communities.

About The ADDA
The Association of Deputy District Attorneys (ADDA) is the collective bargaining agent and represents over 800 Deputy District Attorneys who work for the County of Los Angeles.

Gascón Delivers Another Gut Punch to Victims

By Kathleen Cady

Los Angeles County District Attorney George Gascón has now taken the indefensible position that victims don’t need to be informed that a parole hearing is schedule for an inmate who brutally raped them or murdered their loved ones. The California Constitution, however, guarantees victims the right “to be informed of all parole procedures, to participate in the parole process, [and] to provide information to the parole authority to be considered before the parole of the offender. . .” Article I, Section 28(b)(15). How victims choose to respond once they are informed is completely up to them.

Defendants who are convicted of murder, attempted murder or some aggravated sexual assault crimes can be sentenced to a “life” sentence. Before these lifer inmates can be released, they go through a hearing in front of the Parole Board who determines whether the inmate poses a current unreasonable risk to public safety or if he or she is “suitable” for release.

Prosecutors Are Prohibited from Attending Parole Hearings

On December 7, 2020, Gascón issued a policy that prohibited prosecutors from attending parole hearings. The result of this policy is that no one is present at parole hearings to represent the interests of the residents of Los Angeles County. Gascón’s written policy did state, “this Office will continue to meet its obligation to notify and advise victims under California law, and is committed to a process of healing and restorative justice for all victims.

Victims are Provided No Information

In preparation for a parole hearing, the Board of Parole Hearings (BPH) provides the inmate’s prison file to the district attorneys office that prosecuted that inmate. Prosecutors then provide information to victims and surviving family members of murder victims to help prepare victims to attend the parole hearing. For instance, victims need to know the inmate’s current risk assessment, whether the inmate has recent violations, if they have expressed remorse, what rehabilitative programming they have done, if any, etc. This helps victims to emotionally and mentally prepare for a possible parole grant, or conversely gives them information on why the inmate continues to pose an unreasonable risk to public safety.

On July 9, 2021, Gascón’s handpicked surrogate, Diana Teran, sent an email to the Executive Officer of BPH which stated, “As you may know, our current policy is not to have our prosecutors attend parole hearings. . . . it would be prudent to stop sending the information to our office and remove permissions to all previously accessed files.”

Victims and their families who contacted the California Department of Corrections and Rehabilitation (CDCR) to obtain the information were directed to Teran. When the victims and their families contacted Teran she responded “[o]ur office does not provide more information than has been determined by CDCR to be appropriate and not subject to confidentiality or other legal concerns.” What she didn’t tell the victims, or their families is that those legal concerns had been raised by her and that she had instructed the prisons to funnel all such information only through her.

Gascón’s Chief of Staff, Joseph Iniguez, has since instructed prosecutors and advocates that they cannot refer victims to Diana Teran nor let victims know that Teran has access to prisoner files.

This means that victims and their families are left alone, with no legal assistance, no information and no one to speak on their behalf at parole hearings.

Gascón is Hiding Free Resources from Victims

Victims’ constitutional rights are also known as Marsy’s Law Rights, named for Marsy Nicholas who was murdered by a former boyfriend. In January 2021, several former prosecutors formed a group called Marsy’s Law Attorneys to provide pro bono representation for victims. This group assists victims and their families at parole hearings.

Gascón, however, is now deliberately hiding the one available resource from victims: free help from qualified and experienced attorneys who stand ready to help them assert their rights through the parole process. On March 22, 2022, Iniguez ordered prosecutors to stop referring victims to Marsy’s Law Attorneys. Subsequently, victim advocates, whose statutory mandate it is to provide resources and referrals to victims (Penal Code 13835.5(a)(3)), were also ordered to stop referring victims to Marsy’s Law attorneys.

Each month there are approximately 200 parole hearings for prisoners convicted of crimes committed in Los Angeles County. Victims, including rape victims or parents of murdered children, can register with CDCR to get notice of parole hearings through BPH. However, only 25% of victims of crimes in Los Angeles have registered to receive notice of parole hearings. Why would victims not register to get notice of a parole hearing? Because they never thought the defendant would come up for parole.

But the laws have changed and Gascón has issued policies that exacerbate the problem and violate victims’ rights.

Prisoners who are over 50 years old and have served 20 years continuous custody are now entitled to an Elder Parole hearing regardless of their sentence. (Penal Code 3055).
Anyone who was 25 years or younger at the time they committed a crime can be eligible for a youthful parole hearing after 15, 20 or 25 years. (Penal Code 3051).
Anyone who was under 18 years old when they committed a crime and sentenced to life without the possibility of parole is eligible for parole hearing after 25 years (Penal Code 3051).
There are several “Re”sentencing statutes where defendants can challenge their murder conviction or ask to have their sentence reduced. (Penal Code 1170, et seq.) Gascón’s Resentencing policy states, “this Office will reevaluate and consider for resentencing people who have already served 15 years in prison. . . . On resentencing, this Office will dismiss enhancements consistent with our current enhancement policies and otherwise not seek a sentence that is inconsistent with this office’s current sentencing policies.” In violation of county rules, Gascón has recently hired several retired deputy public defenders who now staff Resentencing Unit positions in the DA’s office.
Gascón’s handpicked surrogate on habeas corpus claims, Shelan Joseph, is systematically conceding capital (death penalty) habeas claims and/or seeking to resentence all defendants whose case is pending a capital habeas claim.

What does all this mean? In a case where a 30-year-old murderer was sentenced to 60 years to life, victims would reasonably have thought that the murderer would die in prison. Except now, once the inmate turns 50 years old, they are eligible for an elder parole hearing. In a case where a 25-year-old was convicted of multiple kidnap-for-rape and rape counts and sentenced to 300 years to life, the rapist is eligible for a parole hearing after serving 25 years. A 17-year-old who committed multiple gang murders and was sentenced to life without the possibility of parole is eligible for parole after 25 years in custody.

The people of this state, including victims and their families, have no way of knowing that the sentence the judge imposed is essentially meaningless. We have a right to expect elected officials to act in good faith and follow the oath they took to support and defend the constitution (California Constitution Article XX, Section 3). Victims and their families should be able to know that if the defendant does come up for parole that the District Attorney’s Office will represent the People, notify the victims, and help them through the process.

If victims assumed that, however, they would have been wrong – very wrong.

Another ludicrous consequence: Victims or their families are not notified of the parole hearing, they have no way of asking for parole conditions. For instance, sexual assault victims might want to ask that the person who violently raped them not be paroled to their neighborhood.

Gascón Has Decided it is “Not Appropriate” to Keep Victims Informed

Diana Teran, who was recently promoted to Director over Parole Division and all resentencing and habeas cases, has issued an edict that contradicts Gascón’s initial policy which stated, “this Office will continue to meet its obligation to notify and advise victims under California law.” An email sent to prosecutors in the Lifer Hearing unit stated, “Administration has determined that it is “not appropriate” for the LADA to notify victims of crime and victim next of kin of those that were murdered that parole hearings are scheduled for the inmates that harmed them and their loved ones. We will continue to do the work on all cases assigned through October 2022.” Instead, LADA claims that CDCR notifying victims and families in 25% of LA’s cases is sufficient. LADA will no longer make efforts to find those who haven’t registered and advise them of the changes in the law that resulted in an upcoming parole hearing of the criminal who harmed them or their loved one. This new turn of events is outrageous. Victims who thought the person who raped them or murdered their loved one would never get a parole hearing will not be notified that a parole hearing has now been set.

Gascón’s policies summarized:

  • Prosecutors are forbidden from attending parole hearings;
  • Victims and their families are provided no information on the prisoner;
  • Available resources are deliberately hidden from victims and their families; and
  • Victims and their families are not informed by the LADA when a defendant has a parole hearing set. Thus, if they haven’t registered with CDCR, as nearly 75% have not, they will not even know the inmate is up for parole.

This systematic and pervasive violation of victims’ rights appears to be motivated by one goal: to release as many murderers, child molesters and rapists as possible from prison. Keeping victims informed and protecting the people of California and victims’ rights just seems to get in the way.

Kathleen Cady is one of several former prosecutors who are providing pro bono assistance to crime victims in response to Gascón’s policies.