Los Angeles: Inside One Prosecutor’s Revolt Against DA Gascón’s Criminal Justice Agenda

BY FRANK STOLTZE IN NEWS ON FEBRUARY 2, 2021 3:09 PM

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L.A. District Attorney George Gascón is fighting his own staff in court to defend his sweeping new policies designed to reduce mass incarceration and end racial disparities in the justice system.

The Association of Deputy District Attorneys, the union that represents Gascón’s prosecutors, has sued the DA, arguing that his special order to stop using so-called “sentencing enhancements” violates state law. Enhancements can tack on many years to a prison sentence.

A prosecutor can add enhancements for defendants who are members of a gang, use a gun during the commission of a crime, or commit a second or third strike that is a serious or violent felony.

Both sides argue that not just public safety is at stake, but justice itself.

The conflict is also playing out inside hundreds of courtrooms across L.A.

A MOTHER’S DAY DOUBLE MURDER

One stark example occurred recently in Department 115 on the 11th floor of the main criminal courts building downtown.

Judge Mark Arnold was hearing motions in the 2018 Mother’s Day double murder of two 15-year-old boys — La’marrion Upchurch and Monyae Jackson — and the wounding of two others. The three defendants are believed to have mistaken Upchurch and Jackson for rival gang members when they opened fire on them as they walked home from a party in South L.A.

As the hearing got under way, the defendants — Christian Macias, Nancy De La Rocha and Edwin Loza — sat quietly in their jail jumpsuits under the watchful eye of Sheriff’s deputies, with defense attorneys by their sides.

The hearing was mostly a procedural bore, until the judge turned to the prosecutor: “Now I understand that Mr. Michelena, you have a motion.”

Deputy District Attorney Michael Michelena stood. “There is a motion that I’ve been directed to make from the district attorney to dismiss all allegations of any kind.”

“Allegations” are sentencing enhancements. In this case, Michelena was asking the judge to drop enhancements that accuse the defendants of using a gun, belonging to a gang, and committing multiple murders — which could mean life without parole.

If the judge agreed, the defendants would still face two charges of first-degree murder and two charges of attempted murder, and if convicted would face 50 years-to-life in prison.

What happened next is extraordinary.

Deputy District Attorney Michael Michelena (r) argued his own motion was illegal as Judge Mark Arnold (l) looked on. (Frank Stoltze/LAist)

MY MOTION IS ILLEGAL

Michelena, a member of the DA’s gang unit, told Judge Arnold the motion he just made is illegal, citing Section 1386 of California’s penal code: “The district attorney may not just on their own abandon a prosecution for a public offense.”

He was echoing the arguments in his union’s lawsuit against Gascón. One of its key assertions is that a DA cannot move to dismiss enhancements in hundreds of cases all at once.

“A dismissal in the furtherance of justice must be based on the individualized considerations.” Michelena argued. “It cannot be based on antipathy for the law or a belief that the law is unwise.”

Gascón believes enhancements are unwise. He cites research that shows longer prison sentences are a big driver of the mass incarceration of mostly Black and Brown men, have a negligible impact on crime, and can make someone more likely to reoffend when they get out.

In defending his directive to drop the enhancements, Gascón makes a separation of powers argument that District Attorneys have wide discretion on which charges to file under laws that were passed by the state legislature.

But there was nobody in the courtroom to argue Gascón’s case, since his own prosecutor refused to do so. (Besides having their own union, prosecutors also enjoy civil service protections.)

Defense attorney Angela Berry told Judge Arnold she wanted to submit information in support of dropping the enhancements. He told her she could, but then issued his ruling on the spot. The prosecution’s motion was denied.

“The position of the district attorney in seeking dismissal of special allegations has no legal authority, it is of no legal precedent,” Arnold said.

WHAT IS IN THE ‘INTEREST OF JUSTICE’?

In rejecting the motion, Arnold cited a 1978 California Supreme Court ruling, People v. Orin, which laid out considerations for how to determine what’s in the “interest of justice.”

Arnold noted there is no strict definition of “interest of justice” in the law, and that in the end it’s up to judges.

“To me it doesn’t even come close to rising to the level required for a finding that a dismissal should be in the interest of justice,” he said.

Outside court, another defense attorney, Robert Schwartz, called the judge’s ruling “par for the course. This is the reaction that the judiciary is providing all over the county to these motions — especially on these serious cases.”

To be sure, some judges are granting Gascón’s motions to dismiss sentencing enhancements. And some prosecutors are backing the DA.

But not Michelena, and in this case that made him a hero to the family of one of the victims.

‘WICKED HEATHENS … I HOPE THEY ROT IN HELL’

Murder victim La’marrion Upchurch (Courtesy of Rasheen Williams)

“We are very thankful for him, ” said Rasheen Williams, the mother of murder victim La’marrion Upchurch. “The prosecutor is awesome.”

Michelena had invited the family to court. He turned to them at one point while arguing against his boss’s effort to dismiss the enhancements.

Upchurch’s godmother, Courtney Williams, was frustrated that Gascón wanted to reduce the charges.

“I mean it’s crazy because I actually voted for him,” she said. Williams still agrees with the DA that some people are overcharged. But not all, she said, and not the alleged killers of her beloved godson.

“They’re just wicked heathens,” she said. “I hope they rot in hell, and I hope they get what’s coming to them, which is a long prison term.”

Not all victims and families feel this way.

Still, after less than two months in office, Gascón finds his policies under attack on three fronts: from victims, judges and his own prosecutors. The state DA’s association is supporting the lawsuit against him, and The Heritage Foundation, a national conservative think tank, issued a paper blasting him as a “rogue” prosecutor.

Gascón is finding out just how hard it is to implement far-reaching changes in how L.A. County administers justice.

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