State seeks rehearing over appellate ruling on SLO County prosecutors

September 19, 2022

By KAREN VELIE

The Court of Appeal should rehear a dispute over the disqualification of the entire San Luis Obispo County District Attorney’s Office in a case against seven Black Lives Matter defendants because of factual errors and omissions in the record from the trial court, according to the rehearing requests from both the California Attorney General’s Office and SLO County.

“The Court of Appeal was guided by a deficient trial court record as described in both petitions,” wrote Assistant District Attorney Eric Dobroth in an email. “The district attorney fully intends to petition the California Supreme Court for review in this matter should the Court of Appeal opinion remain unchanged.”

During a July 21, 2020 march, Tianna Arata allegedly led approximately 300 protesters onto Highway 101, blocking all lanes in both directions for nearly an hour. While on the highway, protesters ran after vehicles attempting to drive off the freeway, yelled profanities at some of the drivers and in one case threw a skateboard through a car window.

While law enforcement sought multiple felony charges against Arata, prosecutors instead charged Arata with 13 misdemeanors. The district attorney also filed charges against Elias Bautista, Jerad Hill, Sam Grocott, Robert Lastra, Marcus Montgomery, Joshua Powell and Amman Asfaw.

Defense attorneys argued that SLO County District Attorney Dan Dow’s personal political opinions jeopardized the defendants’ rights to a fair trial, and that local prosecutors should be replaced by the California Office of the Attorney General, a request Judge Matt Guerrero approved.

In early Jan. 2021, the California Attorney General’s Office and the SLO County District Attorney’s Office appealed Guerrero’s ruling to recuse the entire district attorney’s office because it “fell well short of the statutory standard.”

Three appellate court judges ruled earlier this month that Dow’s personal political opinions jeopardized the defendants’ rights to a fair trial. In his opinion, Judge Arthur Gilbert wrote that the trial court is better at “assessing witness credibility and making findings of fact.” Judge Gilbert then parroted numerous factual errors from Judge Guerrero’s ruling.

On Sept. 15, the state filed its request to have the appellate court correct the factual errors and omissions. The state and the county pointed at multiple issues regarding dates, facts and allegations in the appellate court’s analysis:

The court explained that Dow filed charges against Arata on the same day that his wife sent an email asking for donations, and the same day Dow posted on the Protect Paso Facebook page. However, the email and the post occurred two days after the filing of charges.

The court’s opinion suggests that Arata was the only BLM participant initially charged by local prosecutors. However, prosecutors filed charges against Elias Bautista and Arata on the same day.

The court determined Dow showed bias when he appeared on Washington Watch with Tony Perkins, who according to the court has described the BLM movement as a ‘Marxist’ group who promote cop killings, prostitution, anti- Semitism, anarchy, and the suppression of free speech and religion.’

However, the Perkins show Dow appeared on was about religious freedom, and neither Dow nor Perkins mentioned or discussed BLM. According to the request for a rehearing, there is no evidence that Dow was aware of Perkins’ views on BLM.

In a similar vein, in making their decision, the court reported that Dow attended a speech by Candice Owens. The court noted that Dow wrote a letter to the Tribune stating that “she spoke the truth,” in an attempt to show that Dow agreed with Owens’ view that BLM “is one of the most racist movements that ever existed in this country.”

However, Dow did not send a letter to the Tribune, instead he responded to questions from former Tribune reporter Matt Fountain asking about Dow’s view on Owens’ speech, which never mentioned BLM.

The court also referred to posts on the Protect Paso Facebook page that chastised the marchers for shutting down the highway and stopping drivers from leaving the area, as attachments to a post Dow made.

Members of the conservative Facebook page voiced their disapproval after Dow’s office did not charge Arata with felonies. Dow responded to the complaints on the Protect Paso Facebook page on Sept. 4, 2020.

“I did not cave on anything,” Dow wrote on Facebook. “I am seeking accountability and justice by charging appropriate crimes for what evidence was submitted to my office. The law does not support felonies being prosecuted for the conduct in this case.”

Some members of the page then chastised the BLM protesters.

And while the court refers to the posts as Dow’s attachments, Dow “did not attach those comments as exhibits to his social media post,” according to the state’s request for a rehearing. “There is no evidence in the record that District Attorney Dow was aware of the comments.”

The appellate court is unlikely to make a ruling until the other parties have had a chance to respond to the petition for a rehearing.