LOS ANGELES – The union representing Los Angeles County prosecutors urged a judge Tuesday to issue a preliminary injunction stopping District Attorney George Gascon from enforcing directives eliminating three-strikes allegations and some sentencing enhancements.
Los Angeles Superior Court Judge James C. Chalfant did not immediately rule, saying he was taking the issues under submission and may have a decision by the end of the week. However, he commented on the absolute nature of the language in the directives, saying Gascon would probably be on safe ground if he instead said he would “rarely” seek some sentencing enhancements instead of saying never.
The Association of Deputy District Attorneys for Los Angeles County contends the directives — handed down the day the county’s top prosecutor was sworn into office on Dec. 7 — violate state law.
A directive that calls for dismissing, withdrawing or not filing special circumstance allegations that could result in a life prison sentence without the possibility of parole for defendants charged with murder is among those targeted in the lawsuit, which also challenges Gascon’s directive to dismiss gang enhancements and firearm allegations that can add more time to prison sentences. Some judges have refused to dismiss the special circumstance allegations or to allow prosecutors to file an amended complaint that doesn’t include them in cases that were filed before Gascon was sworn into office.
“The touchstone of prosecutorial discretion is the exercise of case- by-case discretion, which (Gascon’s) special directives expressly, intentionally and undisputedly prohibit,” the union’s lawyers state in their court papers. “Those directives are thus unlawful.”
Attorney David J. Carroll, on behalf of the union, told Chalfant that ordering prosecutors to do things that they believe would violate the law as well as their statutory duties is wrong and would also put them in danger of committing an ethical violation. He also said it is inappropriate to make deputy district attorneys argue something is unconstitutional when they know it is not.
But lawyer Robert E. Dugdale said some two million people voted for Gascon and that they knew what he planned to do when they decided to elect him. Gascon — a former LAPD assistant chief, onetime Mesa, Arizona police chief and San Francisco district attorney — positioned himself as a reformer in the race. Dugdale said the legal action by the union is unprecedented and that the law gives Gascon the purview to make the kinds of decisions he has made.
“I want to make clear the D.A. does not believe he is above the law,” Dugdale said.
Dugdale also challenged the association’s right to bring the suit, saying it is responsible for improving wages and working conditions for its members, but not for influencing policy. He also said the union should have filed a grievance first, but instead “ran to court.”
However, Chalfant questioned why it should not be considered an issue of work conditions if a deputy district attorney is forced to go to court and do something “illegal and unethical.”
The union’s petition alleges that Gascon, “within weeks of his investiture as Los Angeles County’s district attorney, has issued special directives that are not merely radical, but plainly unlawful. They command the deputy district attorneys of respondent Los Angeles County District Attorney’s Office to violate California’s constitution and laws.”
Gascon “may not ignore, but must enforce California’s mandatory sentencing laws,” according to the lawsuit, which alleges that the Los Angeles Superior Court is “both empowered and obligated to enjoin this abuse of discretion” by declaring the challenged directives “illegal and unenforceable.”
The petition also alleges that the District Attorney’s Office has “dispatched agents to monitor prosecutors at their hearings to ensure that they abide by the special directives rather than the law.”