The elections of George Gascon and Chesa Boudin as the district attorneys of Los Angeles and San Francisco were historic events. Both men campaigned on progressive platforms aimed at reforming the criminal justice system. Voters, perhaps finally weary of the decades of harm caused by politicians stumbling over themselves to be viewed as tougher on crime than the next, voted for change.

Almost immediately, the law and order crowd commenced plans to recall each of them. The recall effort against Gascon stumbled, initially, failing to qualify for the ballot last year, but appears on track to gather the necessary signatures this year.

Supporters of the recall have sought to tie Gascon’s policies to increases in crime, homicides, and shootings, in particular, arguing that Gascon’s reformation of the manner in which some crimes are prosecuted has emboldened criminals.

The problem is, that the data does not support the argument. During Gascon’s first year in office, the District Attorney filed felonies at a nearly identical rate to that of his predecessor, Jackie Lacey. What has changed since Lacey’s defeat is the rate at which law enforcement is solving crimes. The LAPD went from solving 76% of homicides in 2019 to only 50% last year. The Sheriff’s Department’s homicide clearance rate fell from 71% to 40% over the same time period. Meanwhile, the rising crime rates being blamed on Gascon are being seen nationwide.

Alex Villanueva, who has overseen the Sheriff’s Department that seems to have forgotten how to solve crime has been one of Gascon’s chief critics.

Whether someone believes they will receive a 25-year sentence or a 50-year sentence is not the factor most likely to deter crime, it is whether someone believes they will be caught. When you have an inept Sheriff who is more focused on investigating political rivals and grandstanding for cameras than ensuring that his department is solving crimes, would-be criminals take notice.

If Los Angeles wants to recall someone to make its streets safer, that person should be Alex Villanueva.

The confirmation hearing for Kentaji Brown Jackson, the first African-American woman ever nominated to the Supreme Court, begins today. Judge Jackson is also the first former public defender ever nominated to the nation’s highest court.

As a former public defender, this last bit could not make me happier. Far too many of the judges, who day in and day out, make decisions that have a monumental impact on human lives are people who have never represented individuals as clients. The experience of holding a person’s life in your hands and the opportunity to represent people whose lives are wildly different than that of most lawyers creates a perspective that is sorely lacking in our judiciary.

Initially, it appeared that Republicans might not strongly oppose the nomination, fearful of providing more evidence that they are the party who opens their doors to racists and sexists. Sadly, it does not appear that this will stop them. Even more sadly, without any real criticisms to present, Republicans are taking aim at Judge Jackson’s work on behalf of the accused.

Leaving aside the ugly optics of opposing the first black woman ever nominated to the Supreme Court, the substance of this argument should trouble anyone who still believes in the Constitution. This criticism is the same disingenuous attack made on many others who have worked as criminal defense attorneys on behalf of the accused: that somehow fulfilling the role that the Constitution guarantees means the person doing so is pro-criminal or pro-crime.

Mitch McConnell opened his uncircumcised neck to say the following: “Her supporters look at her résumé and deduce a special empathy for criminals.” He further suggested that the prosecutors would rightfully fear that they somehow came before Judge Jackson with an unfair disadvantage. Not surprisingly, McConnell has never voiced such concerns when vetting former prosecutors, including those who sought astronomic sentences based on the racist drug policies of the 1980s and 1990s.

Also unsurprisingly, neither McConnell nor fellow scumbag Josh Hawley actually pointed to specifics in Judge Jackson’s record. They did not because they could not. Judge Jackson’s nomination is supported by the Fraternal Order of Police.

Not every Republican is willing to stoop to such lows. Senator John Neely Kennedy of Louisiana admirably stated that he not “criticize her for any client she’s represented. We’ve all represented clients that we didn’t agree with and in some cases, didn’t even like.” It is encouraging to see this intellectual honesty still has a place in the national discourse. Lawyers are not their clients and even the worst of the worst are entitled to representation, this is the only way our system works.

The fact of the matter is we need more judges on higher courts who have represented humans as clients, rather than the government or corporations. Judge Jackson is exceptionally qualified in this regard. Here is hoping that her history-making nomination is confirmed.

Since the start of the pandemic in March of 2020, hot meals have been suspended in Orange County jails. The initial decision was based on a lack of inmate work crews and a desire to avoid contact in the dining halls and food preparation areas of the jail.

My clients have reported, for the last two years, being fed bologna sandwiches three times a day. County officials insist they have begun to reintegrate other options and some warm meals, but these claims are apparently made based on the intermittent offering of warm cereal or oatmeal and a cold hard-boiled egg in the morning.

The conditions have already contributed to a hunger strike among inmates. Now reports are circulating that the bologna sandwiches are sometimes being served on soggy, moldy bread with rotten meat.

Fyodor Dostoevsky once wrote, “the degree of civilization in a society can be judged by entering its prisons.” The Crime and Punishment author knew of what he spoke having been imprisoned in Siberia for 4 years. There’s a line somewhere that delineates coddling inmates from simply treating them with the basic humanity that all humans are entitled to. Starving and poisoning inmates falls well to the wrong side of that line.

And in case you think to yourself, “well they are doing the best they can,” last year the Sheriff’s Department left a million dollars that were budgeted for inmate food unspent. Nor can the department even blame the pandemic for all of its shortcomings, a 2017 report from the Department of Homeland Security identified the service of spoiled food as an issue already occurring in the jails.

It seems clear that the powers that be in the Sheriff’s Department care very little about the health and safety of people housed in its jails. The Board of Supervisors should take a different approach before a lawsuit forced them to.

It seems as if the Orange County District Attorney’s office has been mired in scandal for most of my career as a lawyer at this point. After a decades-long cover-up regarding the misuse of jailhouse informants led to the recusal of the office and the dismissal of the death penalty in the largest mass shooting in Orange County History, an unlikely candidate emerged promising to reform the office.

Todd Spitzer, who began his career working in the District Attorney’s office before leaving to pursue elected office as a legislator and County Supervisor then returning to the office as the heir apparent and then being fired by his predecessor, Tony Rackauckas, over alleged misconduct, ran against and defeated his former boss who had held the job for 2 decades. He did so promising to restore the integrity of the office.

Those familiar with Spitzer were less than convinced.

Over the last few weeks, the scandals have come fast and furious for the would-be reformer. Already, Spitzer had dealt with much criticism and several lawsuits related to Gary Logalbo, who served as Best Man in Spitzer’s wedding before being promoted to a high-ranking supervisorial assignment by Spitzer, allegedly sexually harassing multiple female subordinates. Then came the shocking news that Spitzer had fired long-time senior prosecutor Brahim Baytieh, currently a judicial candidate. At the time, Spitzer’s office proffered Baytieh’s own misconduct in a 2010 prosecution that was recently reversed. Relatively quickly, however, rumors began circulating that there was more to the firing than met the eye.

Last week, it was revealed that during a meeting to consider whether to seek the death penalty against a black man, Spitzer had made comments about black men dating white women to enhance their status in life. Calls for his resignation began before a video circulated of him repeatedly using the N-Word, appearing very comfortable doing so despite also displaying discomfort using the F-Word.

Most recently, former senior prosecutor Matt Murphy filed a document with the court alleging that Spitzer had lied to the court in an effort to protect himself and similarly reversed a previous decision to seek the death penalty in the case where his racially charged remarks were made.

And this is the short version. Google Todd Spitzer if you want to dig even deeper into the swamp he had created for himself. As of today, he faces 3 challengers in the June primary election, but candidates have until March 11^th to file, and I anticipate we may see a few late entries given the slew of negative coverage he is receiving right now.

Orange County is the 6^th largest county in the country. We deserve law enforcement and prosecutors who set a higher standard than we have received lately. We deserve better than Todd Spitzer.

As we usher in 2022, we are once again simultaneously ushering in a broad slate of new laws in California that will bring significant change and reform to the criminal justice system. Some of these will probably warrant their own posts at some point, but for now, I am just going to highlight and summarize some of the most major changes happening.

• Aggravated sentences:

SB 567 requires that any factor a court relies on to impose an aggravated sentence (also known as “upper term”) must be proved beyond a reasonable doubt to a jury. Moreover, the trial on such aggravating factors must be bifurcated, or separated, from the trial on the primary charges.

I predict most prosecutors will rarely go to this trouble and we will generally see “mid-term” being imposed after trial, which will also impact pre-trial offers (as a defendant’s potential exposure after the trial is now likely to be lower).

The bill also requires selection of the lower term in most cases where mitigating “contributing factors” are found such as childhood trauma, the defendant was a youth (under 26) at the time of the crime, etc…

• Gang law reform:
  
  AB 333 drastically reforms the prosecution of gang crimes. Among the changes, any trial on gang charges must be bifurcated, or separated, from non-gang charges. What this means is that, upon defense request, a trial would first be held on the non-gang related charges before a separate trial on the gang charges. This is a really significant and important change as cops and prosecutors often seek to shore up weak cases by including gang charges, which often have the effect of prejudicing jurors against a defendant.
  
  The bill also changes the way in which the government is required to prove gang enhancements. Most importantly, when the government alleges a crime was committed “for the benefit” of a criminal street gang, they must prove that the benefit is more than reputational. This will, in theory, prevent gang cops from testifying that essentially any crime committed by a gang member is committed for the benefit of the gang by engaging in the circular logic that crimes committed by members necessarily benefit the gang’s reputation (which then leads to any crime committed by a gang member being committed for the benefit of the gang, a ridiculous and overbroad concept).
   
• Clarification around prior reform of felony /natural and probable consequence murder:
  
  SB 775, most importantly, expands the resentencing relief available to people convicted of murder under a felony murder or natural and probable consequence theory to those convicted of attempted murder.
  
  The bill also clarifies what evidence is admissible at the hearing on resentencing as well as the standard of proof.
   
• Sentencing reform:
  
  SB 81 gives courts much greater latitude to dismiss enhancements in the interest of justice. The law appears to even require such dismissal in some circumstances, instructing courts to afford great weight to evidence of mitigating circumstances and dismiss enhancements unless it finds that doing so would endanger public safety.
  
  Absent a finding that dismissal would endanger public safety, circumstances in which a court is required to dismiss enhancements include: when multiple enhancements are charged; when an enhancement would result in a sentence of over 20 years; when the enhancement is based on a prior over five years old; when the offense is connected to a defendant’s mental illness, childhood trauma or prior victimization.

AB 124 now requires prosecutors to consider the childhood trauma of a defendant during plea negotiations.
 

• Release from custody on probation violations:
   

Previously, when someone was charged with a probation violation, most courts would not set bail. AB 1228 now requires courts to consider release for probation, parole, and AB109 violations and, in fact, requires release on one’s own recognizance unless the court finds by clear and convincing evidence that circumstances particular to the defendant require incarceration or the setting of bail. These factors can include protection of the public or assuring future appearances of the defendant.t
 Jury selection reform:

Getting rid of a juror during jury selection on the basis of race, gender, sexual orientation, ethnicity, or religious affiliation is not allowed, but AB 3070 now puts some real teeth into the prohibition. When one side challenges the other’s removal or a juror on the grounds that the other side based the removal on an improper ground, the court must hear the justification for the removal. Previously, the court was only required to take action if it found that the removal of the juror was actually based on an improper reason. Now, it must take action if it finds that an objectively reasonable person would view one of the above protected classes as being a factor in the removal of a juror. In other words, the judge no longer has to call the prosecutor a racist, but only find that someone could see it that way.

As discussed here previously, Senate Bill 1437 dramatically amended the law governing murder prosecutions in California. The goal of the law was to significantly limit murder prosecutions of people who were not the actual killer. The law accomplished this by narrowing those who could be prosecuted under a felony-murder theory and abolishing the “natural and probable consequence” theory of murder. The law also allows people previously convicted under a now invalid theory to petition the court to vacate their murder convictions. Specifically, the bill was intended “to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.”

A grey area in all of this is a theory known as provocative act murder. Essentially, provocative act murder imposes liability on someone who does something that causes another person, other than an accomplice, to use deadly force. The most obvious example would be if person A shoots at person X and person X returns fire in self-defense and kills person B, person A could be prosecuted for the murder of person B under this theory. However, the doctrine has also been used by prosecutors over the years in much more expansive ways. For instance, I have seen numerous prosecutions in which gang member A “hit up” (challenged) gang member X, gang member X then shot person B and gang member A is prosecuted for the murder of person B.

I previously assumed that provocative act murder was simply a subset of the natural and probable consequence theory; when you do an act where you should have known that a probable consequence is someone being killed, you could (under the old law) be prosecuted for murder. Thus, I assumed that SB 1437, by getting rid of the natural and probable consequence theory, had also gotten rid of the provocative act theory.

It appears I was wrong. There is a slight, but important, distinction in prosecutions for provocative act murder as opposed to natural and probable consequence murder that it appears will allow provocative act murder to survive SB 1437 unless the legislature acts. Under the old natural and probable consequence and felony murder laws, the prosecution was not required to prove that the defendant acted with malice (the intent to kill or the conscious disregard of risk to human life). Because the jury instructions for provocative act murder have always required proof that the defendant did the provocative act with a conscious disregard for human life, the theory seems to survive SB 1437 and, thus far, every appellate court has reached this conclusion.

Ultimately, just as a person can still be convicted under the current law if they directly aid and abet an actual killer with express or implied malice or if they are a major participant in a felony murder acting with reckless indifference to human life, the provocative act theory of murder is still viable where a person individually acts with conscious disregard to human life, or so the appellate courts have thus far ruled.

This may lead to some rather absurd results, but for now, it appears to be the state of the law. The California Supreme Court has not weighed in on the issue yet and it remains possible that the legislature will clarify that they indeed intend to abrogate provocative act murder as well.

All that said, SB 1437 and Sb 775 have still created a path to redemption for many, many people previously convicted of murder and attempted murder. Even if you were convicted under a provocative act theory, if your jury received instructions on other theories, you may be eligible for relief. If you have any questions about whether you or a loved one may be eligible for relief, contact my office immediately.