The Lemon Lawyer

By Ryan Erlich

If you buy a new car in California and it doesn’t work, the state’s Lemon Law compels the carmaker to fix it, replace it, or buy it back.

Wouldn’t it be great if we had something like that for local politicians?

Here’s why I ask..

I’ve been a deputy district attorney for almost ten years. And in that time, I’ve talked with a lot of people about what I do.

Most of them don’t work in the criminal justice system. They’re artists, waiters, teachers, writers, nurses, librarians, barbers, pastors, and moms and dads with other things on their minds. They all ask questions, mostly about the cases we handle in court. I blame this on true crime podcasts and TV shows.

Until this year, those questions usually began with “who” or “what” or “when” or “how,” like “what was your craziest case?” or “how was it solved?

But since George Gascon became Los Angeles County’s District Attorney, more are asking questions that begin with “why.” And I don’t mean “why does crime happen?” or “why do we need prisons?”

Now, they’re asking “why are things so much worse now than they were a year ago?” “Why did I vote for this guy?” “Why do I still live in Los Angeles?

The people asking these questions are frustrated, mad, and afraid. They also regret not paying more attention to the 2020 District Attorney’s race when they had the chance.

And despite what Gascon and his political team say, these folks are not right-wingers or reactionary Republicans. Most of them are politically left-of-center. Some are proud, self-described progressives. All care deeply about social justice and racial equity.

Their anger is not irrational.

Many of them — including many of my friends — voted for Gascon because they believed, in the post-George Floyd / Black Lives Matter era, that he would prosecute “killer cops” who unlawfully used force against people of color.

And they felt good about casting that vote. Because, in their minds, a vote for Gascon and the brand of criminal justice reform he claimed to represent was an easy way — the easiest, in fact — for well-intentioned moderate and left-of-center voters like them to demonstrate allyship and continued political support for a nationwide movement that, at its core, stands for equal justice and righting past wrongs.

What they didn’t know was that Gascon hardly ever did that when he was San Francisco’s District Attorney. (See Mario Woods & Luis Gongora Pat.) In fact, his failure to do it made him so politically unpopular that he couldn’t run for reelection in 2019. His political toxicity was also one of the reasons he stepped down (read: quit) before his term ended.

They also didn’t know that Gascon’s claim that he “reduced violent crime in every leadership position [he’d] held” was false. Under Gascon’s “leadership,” overall reported crime in San Francisco increased 43% (32% per capita), property crime increased by 48% (37% per capita), violent crime by 11% (3.5% per capita), and arsons by almost 70% (57% per capita). When Gascon took office in January 2011, San Francisco’s per capita crime rate was 60% higher than the statewide rate; by 2019, it was 130% higher. Just last month, the San Francisco Board of Supervisors declared the city’s Tenderloin district to be a disaster area, thanks to policies Gascon championed as DA, including Proposition 47. And in his first full year as Los Angeles’ District Attorney, Gascon hasn’t lived up to his campaign promise to “make our neighborhoods safer.” In the City of Los Angeles, homicides are at a 15-year high. In Sheriff-policed areas, they’re up 47%. Violent crime has increased in both jurisdictions.

What they also didn’t know was that in his first five minutes as Los Angeles County’s District Attorney, Gascon would issue a series of blanket, quasi-illegal directives that would disproportionately harm the same communities that they sought to support with their votes. And they certainly didn’t seek out or sign up for the increase in crime that has inevitably followed.

It’s this disconnect between what Gascon promised (prosecuting “killer cops”) and what he has delivered (lawlessness and disorder) that has left so many people feeling like they’ve been taken for a ride. Because they have.

And now they aren’t just asking “why.” They are screaming it.

Why do we feel unsafe in our homes, our neighborhoods, and our cities?

Why has the violence become so random, so vicious, so pervasive, and so widespread?

Why has George Gascon refused to accept responsibility for any of it?

Why won’t he use every law and tool at his disposal to tame gun and gang violence?

Why hasn’t he fought or lobbied to make more resources available for those suffering from mental illness?

Why doesn’t he do more to help recently released prisoners successfully adapt to the most stressful and psychologically disorienting era in recent memory?

Why does he send weekly fundraising emails to political supporters, but won’t roll out a plan — any plan — to crack down on illegal firearms?

And why, despite all evidence to the contrary, does he believe that his first year as District Attorney was a success?

Why?

They’re also starting to ask another question: “What can we do about it?”

And that brings us back to California’s Lemon Law.

In November 2020, many Angelenos bought — with their votes — a very expensive “car” that just won’t work, doesn’t work, hasn’t worked, and maybe never will work. It’s sitting in the District Attorney’s office and earning an annual salary of $372,000 plus benefits.

They’re tired of making the payments, no matter their politics or party.

They’re begging for repairs, asking for a refund, and searching for a replacement.

So, again, wouldn’t it be great if we had something like the Lemon Law for local politicians?

Ryan Erlich is a Deputy District Attorney and a Director of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.

Running the Office into the Ground

By Eric W. Siddall

Often questioned about his lack of prosecutorial experience, George Gascón has compared running the District Attorney’s Office to managing an airline. Experience? Expertise? They don’t matter. What matters—according to Gascón —is his management credentials.

And after one year, the Gascón administration does feel a bit like a domestic airline. Terrible service. No trust. Low employee morale. Chaotic. The feeling of being abandoned.

Los Angeles is increasingly becoming unsafe. Yet, the DA has no plan to confront this problem. Between 2019 to 2021, gun-related homicides increased 63 percent in Los Angeles County. Instead of combating this scourge by using state law-authorized gun penalties, Gascón ordered his prosecutors not to. Less than 24 hours after the brutal murder of an elderly woman by a felon with a gun, he sent out a fundraising letter touting his commitment to eliminating gun enhancements.

The surge in gun crimes is part and parcel of a broader surge in gang violence. Yet, not only has Gascón directed his prosecutors not to file gang conduct enhancements, but he eliminated half of the division’s prosecutors. He diverted the group of attorneys with the deepest expertise on gangs to units designed to speed up the released of violent convicts.

Despite evidence that criminals are exploiting Gascón’s zero-bail policy, he refuses to ensure dangerous offenders are held accountable for crimes committed while they are out on zero-bail. Felons caught with firearms are released almost immediately from custody, despite often having been arrested multiple times with guns. They are only held accountable when the situation escalates – that is, once they shoot or kill someone.

Theft offenders are on a continuous conveyer belt: arrested, released, repeat. Again, there is minimal effort by Gascón to hold them accountable. Not only does his policy require prosecutors seek zero bail, but when a repeat offender comes back on a new arrest, prosecutors are forbidden to hold them to account for committing a new offense while out on zero-dollar bail.

Sheriff Villanueva has such serious concerns about the District Attorney’s policies, he redirected a murder case to federal prosecutors. His logic clearly reflected not a lack of confidence in the line prosecutors, but a lack of trust in the DA to appropriately charge. And the sheriff is not the only law enforcement officer who has asked for federal assistance because of a lack of confidence in the DA.

Confidence in Gascón is in short supply. In fact, thirty-one cities voted no confidence on his policies. One of them, Manhattan Beach is willing to pay an additional $300,000 to not have the District Attorney prosecute its misdemeanor cases. Again, this reflects not a lack of confidence in the line prosecutors assigned to handle their cases, but a lack of confidence in Gascón himself.

In December 2021, Union Pacific—a critical player in the fragile US supply chain—sent a letter to Gascón. They implored him to reconsider his policies that have resulted in a 160 percent increase in rail theft in Los Angeles County. Typical to Gascón’s management approach, no response. Classic airline management. It is now being reported that Union Pacific is examining alternative routes to avoid having to rely on the Los Angeles District Attorney’s Office.

Angelenos don’t have that luxury. We can’t just reroute our lives.

Eric W. Siddall is Vice President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.

Will Gascon’s ‘Policy Considerations’ Turn a Murderer into a Millionaire

By Kathleen Cady

In 1997 defendant Kenji Howard was convicted of murder of Arkett Mejia, attempted murder of Travon Johnson and two others, and shooting at an occupied vehicle. Recently, the conviction was overturned because of “new” evidence, essentially a statement by his co-defendant who has nothing to lose. On December 2, the Los Angeles District Attorney’s office announced that they would not retry the defendant because of policy considerations and resource constraints.

Wait. What? Murder is the most serious violent crime and the DA’s office won’t retry this case using policy and resources as an excuse? Arkett and Travon aren’t worth it? The result of the District Attorney’s action is that the defendant is no longer “convicted.” He can now legally purchase firearms and ammunition. The defendant has been given a hero’s welcome by his gang. When he applies for a job, there will be no criminal history flag giving employers a warning about what he did.

For Kenji Howard, a lot has changed because of District Attorney George Gascón’s reprehensible action. What hasn’t changed is that Arkett Mejia and Travon Johnson are still dead and their families still miss them every day, especially on holidays, birthdays, anniversaries, Mother’s Day and Father’s Day.

On March 17, 1995, 16-year-old Kenji Howard and co-defendant Edward Powell were both members of the “Blood” Limehood Piru Street Gang. At Dockweiler Beach, they followed friends Landon Martinez, Gail Lewis, Travon Johnson and Arkett Mejia, none of whom were gang members, as they drove home from the beach.

Powell pulled up next to Martinez’ car. People in Powell’s car flashed gang signs and gunshots were fired at Martinez’ car. Arkett, who was on leave from the Air Force to attend her parents 25th anniversary, was shot and died immediately. Travon Johnson was also shot. He lived for 18 years in a coma before he died as a result of being shot. Witnesses described seeing shots from the seat where Howard was sitting. Howard admitted shooting a gun out the window.

Howard was charged, and because he was 16-years-old, he had a “fitness hearing” as the law required in 1995. Under Welfare and Institutions Code 707, a judge determined that Howard should be moved from juvenile court and tried in criminal court. In 1997, a jury found Howard guilty of one count of first-degree murder, three counts of attempted murder, and shooting at occupied vehicle. Powell was also convicted of murder based on aiding and abetting.

On July 13, 2021, a judge granted Howard’s habeas corpus petition based on newly discovered evidence and the conviction was reversed. The ”new” evidence was a confession by Powell that he was the shooter. Powell’s attorney, however, told the judge that Powell would assert his 5th Amendment privilege against self-incrimination and refuse to testify in Howard’s retrial.

Although a judge previously ruled at the defendant’s “fitness hearing” that the defendant should be tried in criminal court, the law changed and Howard is now entitled to a “transfer hearing” where a judge would decide again if the defendant should be tried in adult court.

Enter Gascón’s politics.

On December 2, the prosecutor was directed by Chief Deputy Sharon Woo to read the following language into the record when announcing the office would not retry Howard: Howard “was a minor at the time of this offense. It is the policy of District Attorney George Gascón not to pursue transfer hearings to adult court. Accordingly, this matter will remain in juvenile court.”

“In weighing the evidentiary challenges of proceeding to an adjudication [juvenile court trial] and the reality that no additional penalties can be imposed, the District Attorney’s Office has concluded that its current resource constraints and overarching policy considerations and broad discretion favor dismissal of this matter.

“The District Attorney determines how best to represent society’s interest in prosecuting criminal offenses. Here the interest of justice and society’s interest as represented by District Attorney Gascón are best served by allocating the limited resources of the District Attorney’s Office to more critical needs.”

Really? Resource constraints, policy considerations, and the district attorney’s discretion mean that a charge of murder won’t be pursued when the defendant admitted he shot the gun that killed the victims?

Society has an interest in holding people accountable. Society has an interest in knowing that a background check would reveal that his criminal history when he applies for jobs. Society has an interest in making sure gang members who have admitted shooting a gun that resulted in death can’t buy guns or ammunition. Even if the district attorney’s office decided that they would follow the blanket Youth Justice policy and not pursue a transfer hearing to adult court or seek any additional punishment, society has an interest in ensuring justice is served. Victims want to know that the man who murdered their loved one is held accountable.

As if dismissing the charges wasn’t bad enough, the defense is now asking for a finding of factual innocence (Penal Code 851.8). While this is certainly an appropriate remedy for someone who is factually innocent, it is an outrageous outcome for someone who admitted shooting that resulted in the death of two innocent people. The burden is on the wrongfully convicted person to prove their innocence by a preponderance. The People may present evidence which would essentially be the same evidence and would take the same time as retrying the case. This is the same evidence which the district attorney’s office has claimed they can’t present because of “resource constraints.” If the people do not present evidence, it is likely that the court would have no choice but to find the defendant factually innocent. If that occurs, the defendant is entitled to receive $140 a day from the California Victim Compensation Board (Govt. Code 4904). Given that he has served over 25 years in custody, he could be awarded over $1.2 million from the Victim Compensation Board in addition to being able to sue Los Angeles County for millions more. This money isn’t free — the money from the Victim Compensation Board would then not be available to actual crime victims, like Arkett’s and Travon’s families. Any civil recovery ultimately is paid by the taxpayers. The civil statute of limitations, however, precludes the victims’ families from suing the defendant. Because the District Attorney didn’t want to expend resources retrying the defendant, the victims are concerned that the District Attorney’s office will not want to expend resources defending a factual innocence claim, effectively making Howard a millionaire.

The families of Arkett Mejia and Travon Johnson are devastated. They feel abandoned by the District Attorney. They deserve an elected prosecutor who seeks justice and recognizes that expending resources on prosecuting murder cases is in society’s interests.

Kathleen Cady began her career as a prosecutor in 1989 and retired in 2019. She is one of several former prosecutors who are providing pro bono assistance to crime victims in response to George Gascón’s policies.

Help Wanted: Seeking a Prosecutor, Not a Professional Politician

\By Ryan Erlich

For the last year, District Attorney George Gascon has pursued two related goals. First, send as few people to prison or jail as possible. Also first, let as many people out of jail or prison as quickly as possible.

When you view his first year in office through this lens, everything suddenly makes sense: his staffing picks; his permissive sentencing directives; his let-‘em-out-now, ask-questions-later approach to re-sentencing and post-conviction litigation; his reckless bail policies; his refusal to send prosecutors to parole hearings; and his callous arrogance toward victims and their loved ones.

Do you know what else makes sense? The fallout.

The Los Angeles Times has reported that homicides in the City of Los Angeles are up 46.7% this year compared with 2019. The number of shooting victims is up 51.4%. As of November 30, “there had been 359 homicides in L.A. in 2021, compared with 355 in all of 2020. There have not been more homicides in one year since 2008, which saw 384.”

This mindless and tragic violence touches every community. Its victims are young and old, rich and poor, black and white and brown. And so are the perpetrators.

When Los Angeles magazine asked Gascon if his policies contributed to these record-breaking increases, he declined to respond.

I’m not blaming George Gascon alone for this historic rise in crime. That wouldn’t be fair.

The so-called “drivers” or “root causes” of criminality are too broad, too complex, and too deep to lay at the feet of any one person, even someone who, without a trace of humility, calls himself “the Godfather of progressive prosecutors.”

But I am blaming George Gascon for refusing to do anything about it.

And it’s not like he hasn’t had the opportunity.

Gascon likes to remind us that he beat incumbent District Attorney Jackie Lacey by approximately 265,000 votes and took office with a “mandate.”

What did Gascon do with that valuable, once-in-a-career political capital?

Did he push the County’s Board of Supervisors to fully fund mental health treatment, substance abuse programs, or reentry services for recently released parolees? No.

Did he use his influence to back efforts in Washington and Sacramento to expand early childhood education, job training programs, or affordable housing in Los Angeles? No.

When smash-and-grab robberies rocked retailers from Beverly Hills to Lakewood, did he join local and federal law enforcement leaders and tell us how he would stop it? No. In fact, he was a noticeable no-show.

He apparently has other priorities.

Like convincing the County to transfer four public defenders, each a campaign supporter, to the District Attorney’s office in violation of civil service rules. Like giving those same public defenders the authority to resolve serious cases, including cases they handled while they were public defenders. Like expediting releases for repeat and violent offenders. Like retaliating against a career public prosecutor who chose to follow the law instead of the leader. (This last decision cost County taxpayers more than $800,000.)

So, where does that leave us?

“There’s work to be done and we need to do the work,” Mike Lawson, president and chief executive of the Los Angeles Urban League, told LA Times columnist Erika D. Smith this week.

Every single deputy district attorney would agree.

Our work is in court. To prosecute those who break the law. To hold them accountable. To support and, if necessary, to speak for and on behalf of survivors and their families. To ensure that defendants, especially those who suffer from mental health and/or substance abuse disorders, follow the terms and conditions of their court-ordered treatment programs. Writ large, our work is to seek the truth and to do justice for every victim, every defendant, every day, in every case.

Gascon has tied our hands. He has taken away our discretion to charge, resolve, and try many of our cases. Those who question him are demoted, transferred or punished.

It shouldn’t be that way. And it doesn’t have to be.

At its best, our work doesn’t — and shouldn’t — involve partisan politics or ideological litmus tests. Fox News viewers aren’t the only people who want safe streets, safe communities, or a prosecutor who follows the law. And you don’t have to be a New York Times subscriber to believe that our criminal justice system should hold people accountable for what they’ve done, not because of who they are, where they came from, or what they look like. You’re not a Neanderthal if you think a decades-long or even lifetime sentence is an appropriate and proportional punishment for a convicted murderer. And you’re not a pushover if you support diversion and court-supervised treatment for repeat drug offenders.

I suspect many people in Los Angeles County agree. And if you’re one of them, we need your help.

Gascon often says that that “you can’t cure cancer with a hammer.” It’s his way of suggesting that prosecution, incarceration, and accountability (the hammers) are poor treatments for crime (the cancer).

And I agree: you can’t cure cancer with a hammer. But Gascon’s head-in-the-sand, I’m-always-right approach isn’t curing anyone. It’s harming people.

For the better part of a year, he has been doing the criminal justice equivalent of wheeling cancer patients from the oncology ward to the hospital parking lot, handing them a lollipop, wishing them the best of luck, and shooing them off into the darkness.

He has spent more time pursuing his top two priorities — sending fewer people into custody, moving more people out of custody (ready or not) — than tackling what others refer to as the “root causes” or “drivers” of crime. And now we’re all paying the price for that choice.

Crime happens. At the very least, we should try not to make it any worse. Personal safety — for our neighbors, our children, and our communities — is a first-order concern. All of us want — and deserve — to live and work in a safe place. Daily life is tough enough as it is. But thanks to Gascon, we’re qualitatively and quantitatively less safe than we were last year at this time.

Gascon is not a prosecutor, although he plays one on TV. But he is a seasoned politician who is especially concerned with his own public image and political standing.

So pressure him.

Call his office. Send him an email. Post your thoughts on social media. Call your County Supervisor, your City Council member, or your local state or federal representative. Tell them how you feel and ask for their help. Talk to your family, friends, and neighbors about what’s happening across our county, in your community, and in our state. Write a letter to your local paper. Listen, educate, organize, and act.

Tell him to modify his directives so that they protect everyone, not just those who break the law.

Tell him to do his job or, at the very least, ask him to let us do ours.

Together, we can change the course we’re on. And we must… before we lose yet another life to this mindless violence.

Ryan Erlich is a Deputy District Attorney and a Director of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.

Criminals Pillage Where ‘Lax On Crime’ DAs Rule

By Eric W. Siddall

Los Angeles and San Francisco have been hammered by a brazen crime trend: the “smash-and-grab” robbery.

A pack of thieves, armed with sledgehammers, smash their way into a high-end store, grab tens of tens of thousands of dollars of merchandise, and flee with the loot.

Retailers are doing what they can to protect themselves and their customers. They have hired extra security, put up barriers, and created “checkpoints” to regulate access.

Some people have blamed this crisis on Proposition 47, the 2014 statewide referendum that reclassified many felony theft offenses as misdemeanors. While petty retail theft skyrocketed more than 20 percent soon after Prop 47, the law isn’t the only problem. There’s clearly something else going on.

It’s the leadership.

The Los Angeles and San Francisco prosecutors’ offices are both led by men – George Gascón and Chesa Boudin – who seem to care more about defendants than they do about crime victims or public safety.

Gascón has tapped a group of former public defenders to be his key policymakers and advisors, most of whom have long advocated for the abolition of prisons and the criminal justice system. One advisor has openly encouraged people not to report crimes to the police. Without a hint of irony, Gascón made her Interim Director of the Bureau of Victim Services.

Another Gascón advisor called a victim’s rights attorney a “monster” for her pro bono work advocating for the next of kin of murdered victims. Amid last year’s riots in the Fairfax District, that same advisor took to social media to encourage her followers to “burn that shit down.”

When these are the people making policy, are we surprised that criminals believe that the District Attorney is no longer in the business of holding people accountable?

Accountability is a cornerstone of our justice system. Justice is served when those who do wrong are held accountable. Criminals are deterred when those who do wrong are held accountable. The public’s confidence in the system improves when those who do wrong are held accountable. Without accountability, there is chaos. And we are starting to see these effects.

2014 was one of the safest years in American history. This year we are seeing an explosion of crime. Watts, one of Los Angeles County’s most disadvantaged neighborhoods, saw a 150 percent rise in homicides during the first six months of the year compared to a similar time period in 2020. On the other side of the city, mobs ransacked the Grove in Mid-City and a shopping mall in the San Fernando Valley. Armed robbers terrorize areas untouched by crime for over a decade. Graffiti blights large swaths of our city, some of it put there by gang members claiming “territory.” Sure, the police catch the criminals. But by the time the arresting officer has written the report, those same criminals are walking out of the station, ready to commit their next crime.

This chaos has consequences. The National Retail Federation ranks Los Angeles and San Francisco among the top ten American cities hit hardest by this type of retail theft. In San Francisco and Oakland alone, the estimated cost to business is $3.6 billion, according to the California Retailers Association.

Governor Gavin Newsom, said, “I have no sympathy, no empathy whatsoever with people smashing, grabbing, stealing people’s items, creating havoc and terror in our streets…None.” Mayor Eric Garcetti had similar words: “There’s no place for this kind of criminal behavior…It needs to be addressed. There need to be consequences.”

Both Newsom and Garcetti can, and should, dedicate law enforcement resources to catching these criminals and reducing this type of crime. But they don’t have the power to prosecute it. And ultimately, that is the only way to hold criminals accountable. Neither Gascón nor Boudin seem interested in that task.

“My heart just aches knowing that the prosecution is not on our side anymore.” This statement came from the cousin of a murder victim whose family has seen the devastating effects of Gascón’s juvenile and resentencing policies.

My heart aches too. What has happened to the prosecutor? Why aren’t Boudin and Gascón on the side of crime victims, business owners, and the community? Where is the leadership?

It’s a good question.

Several local media outlets, including KTLA and CBS, asked Gascón to comment on the rise of “smash-and-grab.” The response from L.A.’s top prosecutor, “not available.”

Eric Siddall is Vice President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.

Hundreds of Murder Victims’ Families Are Abandoned by Gascón at Parole Hearings

By Kathleen Cady

On November 2, Michel and Ellen Shane attended the first parole hearing of the man who intentionally and deliberately murdered their precious 13-year-old daughter, Emily. Notably absent from the parole hearing was a prosecutor from the Los Angeles County district attorney’s office. This void meant that no one was there to represent Los Angeles residents’ public safety. More important for Emily’s parents, they were deliberately kept in the dark about the information that would be presented at the parole hearing of their daughter’s murderer, causing them undue grief and anxiety. This injustice was compliments of George Gascón.

Defendants convicted of murder receive a “life” sentence. However, defendants sentenced to “life” are entitled to a parole hearing in front of the Parole Board to decide if they are “suitable” for release.

Victims and their families (referred to in the parole hearing system as victim’s next of kin, or “VNOK”) have an absolute right to attend and meaningfully participate in parole hearings. Cal. Const., Article I, Section 28(b)(15) and (16); Penal Code Sections 3043(b)(1) and 3043.6. Victims and VNOKs should receive notice of the parole hearing three months before the hearing, although sometimes they receive notice only days before the hearing. Often, they experience anxiety such as depression, uncontrollable crying or insomnia, as soon as they get the notice until the conclusion of the parole hearing.

The district attorney’s office is the sole representative for the interests of the people at a parole hearing. Penal Code Section 3041.7. The prosecutor has the responsibility to speak on the facts and give an opinion about whether parole is appropriate. Cal. Code of Regs., title 15, Section 2030(d)(2). Prosecutors can challenge an inmate’s sanitized version of the crime to ensure that the inmate is held accountable as to the true facts of the crime. Traditionally prosecutors, although not attorneys for the murder victim’s family, ensure victim’s interests are represented because the victims’ rights align with the prosecutor’s role as guardian of public safety.

District attorney’s offices in all California counties have attended and participated in parole hearings for over 40 years. Yet, on December 7, 2020, District Attorney Gascón made a radical departure from this norm. His new policy forbids prosecutors from attending parole hearings. Special Directive 20-1. Each month there are approximately 200 parole hearings for inmates convicted of crimes committed in Los Angeles County where the prosecutor is now MIA. The lack of a prosecutor attending a parole hearing means that no one is representing the people of Los Angeles County. Prosecutors are forbidden from objecting to any currently dangerous criminal being released from prison. No other county in California has this void in representing the interests of the people in their county at parole hearings.

When Gascón took the unprecedented step of forbidding prosecutors from attending parole hearings, retired prosecutors stepped up to provide pro bono representation to victims/VNOKs. See Cal. Const., Article I, Section 28(c). Retired prosecutors, however, cannot possibly help all victims left in the wake of Gascón’s dereliction of duty. The result is that murder victim’s families are left alone in the parole process to face their loved one’s murderers unaided by experienced attorneys.

The California Department of Corrections and the Board of Parole provide access to relevant documents for upcoming parole hearings to all California counties’ district attorney’s offices. The information in these documents is what the Parole Board considers in deciding whether an inmate is suitable for parole. This information includes discipline actions, psychological evaluations, rehabilitative efforts, parole plans, letters of remorse, and other relevant documents. While the documents themselves are confidential, the information contained in the documents is discussed at the parole hearing, which is transcribed and publicly available. The inmate also expressly waives his or her right to confidentiality in the psychological interview and written evaluation. Prosecutors throughout California discuss the contents of the inmates’ records with victims/VNOKs to prepare them for what they will hear at the parole hearing. This minimizes the trauma and anxiety that victims/VNOKs have and gives them critical information they need to meaningfully form and express their opinion on release.

As further evidence of his blatant violation of victims’ rights, Gascón has taken the unprecedented step of restricting Los Angeles County prosecutors’ access to any information from inmates’ records, resulting in victims/VNOKs from Los Angeles County not being provided critical information to prepare for parole hearings. Victims/VNOKs from Los Angeles County are being treated differently than victims/VNOKs in any other county which is inequitable, unjust and violates victims’ rights to justice and due process, the bedrock of Marsy’s Law. Cal. Const., Article I, Section 28. This disparity has been going on for months.

On November 9, the relatives of the La Bianca family attended the parole hearing of Leslie Van Houten, one of Manson’s notorious followers. Although the La Bianca family has attended many parole hearings, this will be the first hearing they will attend without a prosecutor. It is also the first time they have not been provided information regarding Van Houten’s recent behavior and current psychological evaluation.

Gascón’s policies are a slap in the face for Emily Shane’s parents, the families of all the Manson murder victims and all Los Angeles County victims/VNOKs. Although the Shane and La Bianca families have a pro bono attorney representing them, they have been deprived of information on how the convicted murderer has been progressing. No parent should ever have to go alone and uninformed to the parole hearing of the person who murdered their child. Nor should any relative of any murder victims be subjected to such a blatant disregard of their rights. Common decency and the Constitution require that they be helped through the process.

Kathleen Cady began her career as a prosecutor in 1989 and retired in 2019. She is one of several former prosecutors who are providing pro bono assistance to crime victims in response to Gascón’s policies.

Injustice in the Juvenile Justice System — Part II

By Kathleen Cady

District Attorney George Gascón’s blanket “Youth Justice Policy” is retraumatizing victims whose cases were concluded years ago. Family after family has been told that the person who murdered their loved one and was sentenced to prison will be released.

Sixteen and 17-year-olds who commit exceptionally heinous and brutal crimes, who are repeat offenders, or whose crimes exhibit adult sophistication can legally be charged in criminal court. Prior to Proposition 57, the decision whether to keep the minor in juvenile court or transfer them to criminal court was made by the district attorney. Proposition 57, enacted by the voters in 2016, changed the law to allow the prosecutor to make a motion to transfer a minor to criminal court but required that a judge make the final decision.

Former minors (all of whom are now in the 20s or 30s) who were charged, convicted and sentenced in criminal court prior to Prop. 57 have been sent back to the juvenile court by the Court of Appeal with an order to the court to hold a retroactive transfer hearing. Although transfer motions had been filed in each of these cases before Gascon took office, Gascón has now determined that his policy of never sending juveniles to criminal court should apply retroactively. The result is that approximately 20 former minors who were convicted of gang murderers, sometimes of multiple murders, are now back in our communities having served only a few years in custody.

Gascón’s blanket policy is retraumatizing murder victims’ families. In addition, community safety is significantly endangered because gang members have become aware of Gascón’s policies. Gangs are now soliciting their youngest members to commit the most heinous crimes since these minors will serve little time.

One such defendant is Andrew Cachu. Cachu was just two months shy of his 18th birthday when he shot and killed 41-year-old Louis Amela outside a Palmdale restaurant in March 2015. Cachu was convicted by a jury who also found the murder and armed robbery was gang-motivated and involved use of a gun. Cachu was sentenced to 50 years to life which, under the Youthful Parole law (Penal Code 3051) would have made him eligible for parole after 20 years. Alisa Blair, who recently transferred to the district attorney’s office from a career in the public defender’s office, is now Gascón’s special advisor on Juvenile, Diversion and Collaborative Courts. She took over the Cachu case in May 2021. Marsy’s Law (Cal. Const. Article I, Section 28) provides that victims of crime have a constitutional right to be notified about all court proceedings and speak to the assigned prosecutor. Despite this, Blair never contacted the victim’s family. Blair did, however, have contact the defendant’s family. During a May 10 recorded jail phone call between the defendant and his mother, Cachu’s mother tells him, “Hi Mijo. You know who that was? … That’s Gascón’s special advisor … She’s the one I’ve been emailing back and forth … She looked at me like ‘Girl — I got you.”

In keeping with Gascón’s policies, Blair requested to keep Cachu (now age 24) in the juvenile system. The judge converted Cachu’s conviction to a juvenile adjudication and set it for a disposition hearing (similar to a criminal sentencing hearing). At a juvenile disposition hearing a prosecutor must present evidence to the court to enable the judge to determine the appropriate sentence. In the absence of evidence, a court cannot make the findings required to sentence the former minor. At Cachu’s disposition hearing, Blair did not present any evidence. Because of this, Cachu was released after spending just over six years in custody for a gang motivated armed robbery and murder. The judge stated during the hearing that Blair’s actions were intentional and her refusal to put on evidence left him with no legal ability to do anything other than release Cachu.

The victim’s family is devastated and feels abandoned by their district attorney, George Gascón.

Additional Ramifications of Gascón’s Youth Justice Policy

Gascón’s policy also mandates that juveniles can only be charged with the lowest possible crime and only one count per incident. Sentencing enhancements that reflect the gravity of the crime, such as the use of a weapon, infliction of great bodily injury, or committing the crime for the benefit of a gang, could affect whether the minor is detained (kept in custody) or whether the crime qualifies as a strike. But pursuant to Gascón’s policy, these allegations cannot be charged. Gascón’s policy means that if a minor robs several people at gunpoint, the most he can be charged with is one count of grand theft person. Not filing appropriate charges and enhancements also means that the case is not open to public. (Welfare and Institutions Section 676). This absurd policy prevents the public from learning about these heinous crimes, and gives the false impression that minors are not committing violent crimes.

Recently Blair has stated that the office’s new, as yet unwritten, policy will be that cases will only be filed for juveniles who commit murder and forcible sex crimes. In all other cases, charges will not be filed at all. Instead, juveniles will be “diverted” (placed on informal probation and charges dismissed). Not providing consequences to juveniles who commit armed robbery, car jackings, home invasion robbery or gang shootings gives the message that they can continue with their violent behavior.

Gascón’s policies have resulted in dangerous individuals being released from custody and has empowered minors to commit crime with little fear of consequences. His policies also provide a false narrative and misleading statistics that juveniles are not committing dangerous or violent crimes. Victims of crime demand justice. Our communities deserve to have an elected official that is dedicated to public safety.

Kathleen Cady began her career as a prosecutor in 1989 and retired in 2019. She is one of several former prosecutors who are providing pro bono assistance to crime victims in response to Gascón’s policies.

‘Re’sentencing is retraumatizing victims and endangering public safety

By Kathleen Cady

Los Angeles District Attorney George Gascón’s focus is not on prosecuting crimes, but on resentencing defendants who were convicted, sentenced and had their appeals denied, sometimes decades ago. Even more disturbing is that the Los Angeles County public defender’s office is writing some of these resentencing motions for prosecutors to file, which deliberately omit or, at best, gloss over adverse controlling case law. All this is happening under the supervision of a deputy public defender “on loan” to the district attorney’s office.

The genesis of this obvious conflict-of-interest came on Dec. 7, 2020, when Gascón issued Special Directive 20-14. It stated “this Office will reevaluate and consider for resentencing people who have already served 15 years in prison.” He simultaneously issued policies that forbid prosecutors to charge gang or gun enhancements, prior strike convictions, or special circumstance allegations in applicable murder prosecutions. Gascón’s directive stated, “the ultimate goal shall be to review and remediate every sentence that does not comport with the new Sentencing, Enhancement and Juvenile Policies. Specifically, this Office commits to an expedited review of the following categories of cases, which are themselves a subset of a universe of 20,000-30,000 cases.”

Gascón’s policy conflicts with the California Constitution. It holds that, “Victims of crime are entitled to finality in their criminal cases. … [T]he ongoing threat that the sentences of criminal wrongdoers will be reduced, prolong the suffering of crime victims for many years after the crimes themselves have been perpetrated.”

Yet, Gascón has used deputy public defenders and loopholes to undermine this constitutional mandate. Resentencing under Gascón’s administration means that convicted defendants have their sentences redone, resulting in a lesser sentence and an earlier release date. Take for instance Proposition 36 resentencing. Prop. 36 was enacted to limit strike prior allegations to violent or serious crimes. However, an interpretation of the law allows judges to reduce the sentence of defendants who were convicted of violent or serious crimes if they were also convicted of nonviolent or serious crimes — so-called “mixed-count” cases. Based on the individualized facts of each case, prosecutors were permitted to argue against this loophole and oppose resentencing, because of the absurd result that a defendant would be given a break because they were convicted of additional offenses. That was the case before Gascón took office.

On taking power, Gascón seized on this loophole to resentence these types of cases. In fact, within days of Gascón being sworn in, Interim Chief Deputy Joseph Iniguez, who had no prior management and minimal felony experience, ordered prosecutors to concede on existing mixed-count cases despite having been provided information as to each defendant’s dangerousness.

One of the cases affected by this blanket policy was People v. Williams. In 2000, Williams was convicted of residential burglary and false imprisonment by violence. Gun allegations and his nine prior residential burglary strike allegations were found true. Williams was also convicted on an unrelated count of receiving stolen property which is how Prop. 36 came into play. Using this Prop. 36 loophole, the defense was able to ask the court to resentence Williams.

The facts of the case are frightening: Williams, a 6’8″ tall man, broke into the victims house and ordered the husband and wife upstairs. He bound their ankles and wrists with torn bed sheets, shoelaces and belts. He gagged them with socks in their mouths. As he pointed the gun at them, he stated, “this might look small to you, but I’m very deadly accurate with it.” Fortunately, the victims managed to escape, retrieve a gun and shoot at the defendant through their bedroom door while on the line with 9-1-1. Williams was convicted and sentenced to 100 years to life. Because of Gascón’s policy, the prosecutor was ordered to concede “dangerousness.” Although the victims appeared and objected, the defendant was resentenced to 18 years, eight months, given credit for time served and ordered to be released from prison on Post Release Community Supervision. On Sept. 20, 2021 it was learned that the defendant was actually released with no supervision or assistance. The victims were not even given the protection of a criminal protective order. They and the community are now endangered by Williams’ release.

On May 5, 2021, Interim Chief Deputy Iniguez sent an email to all top-level management in the district attorney’s office informing them that the point person for all “exceptional conduct” cases was Diana Teran. Public Records Act responses confirm that Teran is “on loan” from the Los Angeles County public defender’s office to the district attorney’s office pursuant to a “mutual agreement” where her salary is paid by the public defender’s office and reimbursed by the district attorney’s office. Her title is “special advisor post-conviction litigation and justice system integrity” for the Los Angeles County district attorney’s office. Despite being employed by the public defender’s office, Teran has appeared representing the prosecution in at least one case, People v. Carter, in which the defendant was also represented by the Los Angeles County public defender’s office.

In 2006, just a few years after her federal bank robbery conviction, Kimberly Carter shot and killed her boyfriend, Harry Phillips. She pleaded no contest to voluntary manslaughter. She also admitted that she used a firearm in the commission of the crime and had a prior strike conviction from 2002 for the bank robbery. She was sentenced to 27 years in prison. In 2020, the court denied a motion to resentence the defendant. On July 15, 2021, Teran filed a motion to resentence the defendant. The case is next in court on Nov. 8, 2021, for a resentencing hearing.

Penal Code Section 1170(d) provides statutory authority for resentencing prisoners based upon exceptional conduct. These motions, however, can only be made by the California Department of Corrections and Rehabilitation or the prosecutor. The law does not allow defense attorneys to make the motion. Yet, defense attorneys are now drafting motions for prosecutors to file on their behalf.

Defendant Miguel Michael Huerta is one such inmate who was referred for resentencing based upon “exceptional conduct.” Huerta is represented by the public defender’s office. The proposed reconsideration motion was drafted by David Marsh, a deputy public defender, for the assigned prosecutor, Mindy Paige, to file. Marsh even incorrectly listed Paige’s email as being with the Los Angeles County public defender’s office. People v. Huerta, XCN BA168888.
There are many other examples of resentencing under Prop. 36 and exceptional conduct subject to Gascón’s blanket policy which are violating victims’ rights and endangering community safety.

Governor Gavin Newsom’s 2021-2022 budget allocated money for a Resentencing Pilot Program giving financial incentives to district attorneys’ offices to remedy unjust sentences. While this may be justified in individual cases, Gascón’s blanket policy seems to be directing that prosecutors request resentencing for anyone who has already served 15 years in prison. Of course, having a supervisor who is employed by the public defender’s office and other deputy public defenders draft motions for prosecutors to file will most certainly help minimize the workload of prosecutors in the district attorney office’s Resentencing Unit.

The public deserves to have an elected prosecutor who upholds his oath to follow the laws and protect community safety. Gascón, however, is expanding his effort to resentence 20,000-30,000 convicted felons who have already served 15 years in prison, releasing dangerous criminals, and endangering our communities.

Kathy Cady began her career as a prosecutor in 1989 and retired in 2019. She is one of several former prosecutors who are providing pro bono assistance to crime victims in response to Gascón’s policies.

Lawsuit Seeking Injunction Filed Against Los Angeles District Attorney

Los Angeles, October 14, 2021 – The Association of Deputy District Attorneys for Los Angeles County (ADDA) is seeking an injunction in Superior Court to prevent District Attorney George Gascon from continuing to violate the law by again appointing ineligible political supporters to civil service protected positions in the District Attorney’s Office.  This action is necessary to preserve the status quo while the Civil Service Commission hears the ADDA appeals of prior ineligible political appointments by the District Attorney.

The Los Angeles County Charter and civil service protections were designed to ensure good government by protecting independent institutions from political cronyism. However, these protections are not self-executing. The lawsuit seeks to stop the sitting district attorney, George Gascón from filling the civil service ranks with political loyalists and financial supporters.

The Los Angeles County Charter establishes a Civil Service System which requires employees to be selected and advanced for their ability, knowledge and skill, prohibits discrimination based on political affiliation, and protects employees against coercion for political purposes. In violation of the charter, the District Attorney hired unqualified political supporters from the Public Defender’s Office and appointed them to Deputy District Attorney positions instead of selecting qualified career prosecutors on the active eligible lists for those positions.

The ADDA appeal of the ineligible political appointments is pending before the Civil Service Commission, which voted unanimously on July 21, 2021, to hear that appeal.  Upon learning the District Attorney is planning to make additional appointments of ineligible political supporters, it is necessary for a Court to enjoin any such appointments until the Civil Service Commission hearings are completed.

Prosecutors are obligated to ethically enforce the law and ensure public safety.  To do so they must engage in decision making that is free from the threat of political retaliation or the promise of political reward.  The ADDA is seeking court intervention because of the continued abuse of the current administration in violating important institutional safeguards designed to insulate the effective administration of justice from political influence.

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.

Injustice in the Juvenile “Justice” System

By Kathy Cady

On his first day in office, Los Angeles District Attorney George Gascón implemented a blanket “Youth Justice Policy” that prohibits criminal prosecution of 16 or 17-year-olds. The policy ignores individualized facts, like the sophistication or heinousness of the crime. It disregards psychological analysis or the future dangerousness of the individual. It prevents independent judicial review to determine whether the appropriate jurisdiction is criminal or juvenile court. It is a policy that treats a multiple murderer unable to conform to societal norms the same as a teenager who shoplifts a candy bar.

It is a policy that has devastated the family members of slain sisters, Uniek and Sierra. The man accused of killing their daughters in November of 2018, was one month shy of his 18th birthday. Under California law he is eligible for prosecution in criminal court because of the viciousness of his crimes. However, because the murders occurred in Los Angeles, they are subject to Gascón’s one-size-fits-all policy. Hoping for an exception, Uniek and Sierra’ family met with Gascón. Gascón expressed his personal condolences, but refused to explain or answer questions about his decision. Eventually the family was told that the DA’s office would not make an exception to the blanket policy. The young man who illegally obtained a firearm, who shot their precious daughters, who started a fire in a residential apartment building to cover up the murders, who stole the victims’ cell phones to make sure he would not be connected to the crime, and who returned to the scene and coolly lied to police when interviewed, will be treated as a juvenile not as an adult. This decision ensures that he will be released by age 25.

The juvenile system is designed to oversee 99.9 percent of crimes committed by minors. Most crimes committed by minors, even violent ones, are not eligible for prosecution in criminal court because the justice system favors rehabilitation for minors.[1] While this is the appropriate treatment for the vast majority of minors, 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, who are repeat offenders, and whose crimes exhibit adult sophistication.

This legal procedure is triggered by the prosecution filing a transfer motion. Once the motion is filed, a judge makes the ultimate decision on whether the 16 and 17- year-old is tried in the juvenile or criminal system.[2] This procedure serves as a safeguard to ensure that only those minors who can’t be rehabilitated in the juvenile system are transferred to criminal jurisdiction.

The District Attorney’s Youth Policy undermines judicial review by mandating that prosecutors tell the judge that they want all minors to remain in juvenile court, even those minors who were waiting for a transfer motion to be held, , without regard to the facts of the crime or the prior criminal conduct of the juvenile.

The difference between juvenile and criminal court is night and day – for the victim and for public safety. If someone is adjudicated in juvenile court, the consequence can be anything from going home on probation to being held in custody at the Department of Juvenile Justice (DJJ) which was created for the express purpose of rehabilitation. Since juvenile court jurisdiction ends when a minor is 25, if a minor commits multiple gang murders a month before their 18th birthday, the longest they can be held in custody is seven years. That is the maximum, but they can be released earlier if DJJ decides they are “rehabilitated.” If that same person committed the same murders a month later, when they were 18 years old, they are eligible for parole in 25 years.

Alisa Blair, who recently transferred to the district attorney’s office from the public defender’s office, claims to have the discretion to deviate from the blanket policy, but has never done so. As a deputy public defender, Blair won an award for preventing juvenile murderers from being transferred to criminal court. Blair has publicly asserted that she wrote most of Gascón’s Youth Policy, which was issued while was still a deputy public defender.
 
There is another twist to this issue. As noted above, those murderers and rapists deemed suitable for the juvenile system are sent to DJJ. However, DJJ is closing as of July 1, 2021.[3] The new Los Angeles alternative called Secure Youth Treatment Facilities (SYTF) is not yet operational. The initial plans for SYTF will not be completed until September 2021. Where will the juveniles go in the meantime? No one knows for sure, although it is anticipated they will be housed at Sylmar Juvenile Hall which has no rehabilitative programs.
 
Victims of violent crime, whether those crimes are committed by adults or juveniles, want justice which includes holding offenders accountable. Gascon’s policy is retraumatizing victims who feel betrayed and abandoned by the District Attorney’s Office. In addition, community safety is endangered when violent offenders, like the young man who murdered Uniek and Sierra, are released at an age when, according to recent studies, criminal behavior peaks.
 
Kathy Cady is one of several former prosecutors who are providing pro bono assistance to crime victims in response to Gascón’s policies.
 
[1] Welfare and Institutions Code 202.
[2] Welfare and Institutions Code 707.
[3] SB-823 Juvenile justice realignment: Office of Youth and Community Restoration. (2019-2020)