Legal foundation files brief challenging SLO County judge’s ruling BLM case

December 1, 2022

By KAREN VELIE

The Criminal Justice Legal Foundation filed an amicus brief with the California Supreme Court in November against a San Luis Obispo County judge’s ruling that a district attorney has a conflict of interest if his personal opinions conflict with a defendant’s views.

During a Black Lives Matter march in 2020, Tianna Arata allegedly led approximately 300 protesters onto Highway 101, blocking all lanes in both directions for nearly an hour. SLO County prosecutors charged Arata with 13 misdemeanors, and also filed charges against Elias Bautista, Jerad Hill, Sam Grocott, Robert Lastra, Marcus Montgomery, Joshua Powell and Amman Asfaw.

Defense attorneys argued that 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.

Judge Matt Guerrero then ruled that Dow had a clear conflict of interest based on the wording of an email his wife sent to his supporters seeking donations. The email asked supporters to help Dow lead the fight against the “wacky defund the police movement and anarchist groups that are trying to undermine the rule of law and public safety in our community.”

The Criminal Justice Legal Foundation’s brief argues that that the campaign email does not directly say anything about Black Lives Matter or the defendants in the case, and even if it had, it should not make a difference.

“Can a district attorney’s entire office be disqualified from prosecuting hate crimes committed by members of the Ku Klux Klan merely because the district attorney spoke at an event where other speakers criticized the Klan?” according to the Criminal Justice Legal Foundation’s brief. “Or because he had taken a stand against racism? Or because he had pledged to prosecute people who plant burning crosses as a threat? As absurd as this sounds, the opinion in this case would give these hypothetical Klansmen a strong argument for recusal.”

In addition, the brief questions the validity of recusing Dow’s entire office based on his limited connection to people who have criticized Black Lives Matter.

“With the statements of the district attorney and his campaign insufficient for recusal, the trial court and the Court of Appeal turned to a guilt-by-association strategy,” according to the brief. “The Court of Appeal noted, ‘The trial court granted the defendants’ motion to recuse District Attorney Dan Dow’s office from the case because of Dow’s well-publicized association with critics of the black lives matter movement,’ and then proceeded to affirm that decision. But the purported ‘associations’ are quite minimal.”

The Sacramento group wrote that Arata should have been charged with a hate crime, because she held people against their will based on their skin color.

In early Jan. 2021, both state and local prosecutors appealed Guerrero’s ruling to recuse the entire district attorney’s office because it “fell well short of the statutory standard.” They lost that attempt and also a request for a rehearing based on factual errors in the Appellate Court ruling.

The Appellate Court then ordered the opinion published in the official record.

Both state and local prosecutors voiced concerns that this case could create a slippery slope, with defendants asking to recuse prosecutors based on their political leanings. In addition, by publishing the order, the case could lead to a lower statutory standard for disqualifying a prosecutor.

Earlier this month, prosecutors filed a petition for review with the state Supreme Court asking the justices to hear the case. The Criminal Justice Legal Foundation in Sacramento then filed the amicus brief.

 

The Criminal Justice Legal Foundation’s amicus brief:

“Amicus Criminal Justice Legal Foundation (CJLF) submits this letter in support of the petition for review. CJLF is a California nonprofit corporation dedicated to the rights of victims of crime in the criminal justice system. The drastic expansion of grounds for recusal made by the Court of Appeal in this case will hamper the prosecution of crime to the detriment of the interests CJLF was formed to protect.

“ ‘Recusal of an entire prosecutorial office is a serious step, imposing a substantial burden on the People, and the Legislature and courts may reasonably insist upon a showing that such a step is necessary to assure a fair trial.’ ” (People v. Bryant (2014) 60 Cal.4th 335, 374, quoting People v. Hamilton (1989) 48 Cal.3d 1142, 1156.)

“The Court of Appeal’s decision in this case endorsed recusal under circumstances never before considered sufficient under section 1424 of the Penal Code, creating a dangerous precedent that may be invoked to recuse entire offices more frequently in the future. The case warrants this court’s review.

“Can a district attorney’s entire office be disqualified from prosecuting hate crimes committed by members of the Ku Klux Klan merely because the district attorney spoke at an event where other speakers criticized the Klan? Or because he had taken a stand against racism? Or because he had pledged to prosecute people who plant burning crosses as a threat? As absurd as this sounds, the opinion in this case would give these hypothetical Klansmen a strong argument for recusal.

“Factual Background

“The present case involves crimes against people, notwithstanding the Court of Appeal’s mendacious opening sentence. Nobody is charged with the non-crime of marching through a city. Of course, the allegations have not been proved yet in the pre-
trial posture of the case. However, since the purpose of defendants’ recusal motions is to prevent the district attorney’s office from proving them at trial, the posture is sufficiently analogous to a summary judgment motion to warrant assuming properly pleaded facts in favor of the nonmoving party for the purpose of review.

“The facts as known to the prosecution are summarized in the People’s Opposition to Defendants’ Motion for Discovery and the People’s Opposition to Defendant’s Demurrer in the same case. The first 13 pages of the first document and the first 12 pages of the second are available at https://www.cjlf.org/files/ArataOppDisc.pdf and https://www.cjlf.org/files/ArataOppDemur.pdf, respectively.

“Most serious is the charge against defendant Lastra. The investigation indicates that he shattered the back window of a family’s car with his skateboard, showering a four-year-old child with shards of broken glass.

“The defendants charged with false imprisonment did not merely cause people to be incidentally stopped as an unintended side effect of marchers using the streets and the highway. The investigation indicates that they intentionally moved into the path of vehicles for the purpose of blocking people who were attempting to escape.

“Defendant ArataWentworth is alleged to have shouted to the group, ‘Don’t let him leave until he confesses his white privilege.’ On this evidence, she appears to have been undercharged. The evidence appears to support an additional charge of a hate crime, interfering with people’s state constitutional right to travel on the basis of race. (See Pen. Code, § 422.6, subd. (a).)

“Amicus does not know what motivated the Court of Appeal to leave the allegations of egregious misconduct out of its factual background and thereby mislead the public as to the true nature of the offenses alleged. Whatever the motive, this court’s decision on the petition for review should be made with a clear understanding that there are
serious crimes against people in this case.

“Conflicts and Campaigns

“Once before, the California judiciary has gotten too loose in recusing district attorneys. The Legislature had to enact section 1424 of the Penal Code ‘to tighten the standards’ because of ‘an increase in the number of recusals’ under the excessively expansive standard.

“Section 1424 does not authorize disqualification merely because the defense has shown that the prosecutor’s involvement ‘would be unseemly, would appear improper, or would tend to reduce public confidence in the impartiality and integrity of the criminal justice system.’ Instead, it is defendant’s burden to allege facts which, if credited, establish (1) a ‘conflict of interest,’ and (2) that the conflict is ‘so grave as to make a “fair trial” unlikely.’

“The first element, plain on the face of the statute, is that “a conflict of interest exists.” (Pen. Code, § 1424, subd. (a)(1).) The trial court and Court of Appeal found a conflict based on a supposedly “targeted” fundraising appeal during the district attorney’s election campaign. This holding has grave implications for a state in which prosecutors are elected.

“To cast informed votes and to make informed campaign contributions, voters must know how candidates for district attorney intend to use the broad and powerful discretion the law vests them with. Victims of crime can no longer bring prosecutions themselves, as they could at common law, and they cannot obtain judicial restraint of abuses of charging discretion by elected prosecutors.

“A holding that prosecutors may be recused because they made campaign statements about what kinds of cases they deem worthy of prosecution or what they regard as threats to public safety could cast a heavy chill on much- needed debate and reduce candidates to spouting uninformative platitudes. This threat to the proper operation of our democratic system warrants this court’s attention.

“The fundraising letter signed by the district attorney’s wife said nothing about the defendants in this case and nothing directly about the Black Lives Matter (BLM) organization. The letter referred to “the wacky defund the police movement and anarchist groups that are trying to undermine the rule of law and public safety in our community.

“This reference is quite mild as campaign pitches go. As originally conceived and as promoted by its most radical faction, the “defund the police” movement really did seek to abolish police departments. Against such an extreme and drastic proposal, the word “wacky” is hardly inflammatory or out of the ordinary.

“Further, the defunding movement is not the same as the BLM organization, though BLM is part of it. Opposing a movement that an organization is a part of hardly constitutes a conflict of interest, and a holding that it does has far- reaching implications that require the most careful consideration.

“Even farther afield is the reference to ‘anarchist groups.’ Nothing in the opinion provides any substantial basis for believing that this reference was intended to refer to BLM. The only other reference to anarchy is in the Tony Perkins statement discussed in the next section. Opposition to anarchy is hardly disqualifying for a district attorney. It would seem to be a job requirement.

“In the summer of 2020, there was widespread rioting, burning, and looting. In Seattle, the government was actually overthrown in a section of the city by people who declared an ‘autonomous zone.’ A stated opposition to such activities and groups that engage in or encourage them is not a conflict of interest unless, as noted at the beginning of the brief, opposition to lynching disqualifies a prosecutor from prosecuting Klan cases. The disqualification effort becomes even more tenuous in the absence of a basis for associating the opposition with the group. Guilt by Minimal Association

“With the statements of the district attorney and his campaign insufficient for recusal, the trial court and the Court of Appeal turned to a guilt-by- association strategy. The Court of Appeal noted, ‘The trial court granted the defendants’ motion to recuse District Attorney Dan Dow’s office from the case because of Dow’s well-publicized association with critics of the black lives matter movement’ proceeded to affirm that decision. But the purported ‘associations’ are quite minimal.

“In our diverse society, public officials can and should appear in a wide variety of forums and communication media. It is absurd to infer that a person who appears in a particular venue necessarily agrees with everything that the host or other speakers have ever said. Yet, incredibly, that is the leap of logic that the Court of Appeal made in this case.

“The Court of Appeal quoted the trial court describing one item of evidence of this guilt by association: ‘August 11, 2020—Mr. Dow appeared on Washington Watch with Tony Perkins. Mr. Perkins of the Family Research Council has described the Black Lives Matter movement as a “Marxist” group who promote “cop killings, prostitution, anti-Semitism, anarchy, and the suppression of speech and religion.’

“Note that the court does not even claim that these statements were made on the same occasion that Mr. Dow appeared, much less that he endorsed them. It is preposterous to hold that these statements made on a different occasion somehow indicate bias on Mr. Dow’s part merely because he appeared on the program.

“The Facebook posting noted by the Court of Appeal is similar. Again quoting the trial court: ‘September 4, 2020—Mr. Dow explained his charging decision in the Protect Paso Facebook group. Documents attached showed animosity to the Black Lives Matter group—their Constitutional right. These claim that the BLM movement is “domestic
terrorism; down right evil, no brains or souls, and posted pictures of a.’

“Although not necessary to the legal point, it is perhaps worth noting that there is a substantial amount of truth in Mr. Perkins’s statement. BLM’s founders are indeed ‘trained Marxists,’ according to one of them.

“Its supporters have indeed chanted ‘pigs in a blanket, fry ‘em like bacon’ at BLM events. There are indeed ugly strains of anti-Semitism at some BLM events.

“BLM billboard burning in flames. Members of the group have discussed their skills as hunters and claim they will use these skills to protect Dan Dow, and “protect our own.’

“The district attorney’s actual post was a reasoned explanation of his decision to charge only misdemeanors up to that point to people who were upset that he did not charge felonies. This post was commendable outreach to inform the public about the criminal
justice system. There is no basis for attributing to Mr. Dow comments made by others in the same forum or holding that they have any bearing on statements made by Mr. Dow or his campaign on different occasions.

“If the reasoning of this decision is applied symmetrically to both sides of the political spectrum, the forums where a prosecutor can appear are sharply limited. If such an appearance coupled with general statements of policy and position is sufficient to establish a “conflict of interest” for a prosecutor, there is no apparent barrier to applying similar reasoning to judges.

“On the other hand, if the reasoning of this decision is not applied symmetrically, then it stands for the proposition that Black Lives Matter is a sacred cow that no one dare criticize. It means that BLM’s critics must be ostracized and not spoken to by public officials, while the same officials are free to associate with people who sling similar accusations at other controversial groups. Such viewpoint discrimination would strike at the very heart of our tradition of free expression.

“Conclusion

“This decision must not stand. The petition for review should be granted.”