Commentary: Why Does the AG Continue to Defend Bad Conduct by Prosecutors?

Xavier Becerra

By David M. Greenwald

Last week when I interviewed Contra Costa DA Diana Becton, one of the people that has put their hat in the race for an appointment to the Attorney General post in California, I asked about current AG Becerra’s weak record in holding police and prosecutors accountable for misconduct.  We have frequently pointed out the utter failure of Becerra, and before him now-Vice President Kamala Harris, when it came to the Orange County informant scandal.

But now the AG’s office is involved in a similar defense of a local prosecutor down in San Luis Obispo.  Last month, the AG’s office and San Luis Obispo County District Attorney filed an appeal of the DA’s disqualification by a Superior Court judge from prosecuting two cases against activist Tianna Arata and six others related to a local Black Lives Matter protest.

Judge Matthew Guerrero in his five-page ruling in December cites a number of factual assertions against SLO DA Dan Dow including an August 11 appearance on Washington Watch with Tony Perkins in which Perkins described the Black Lives Matter movement as a “Marxist” group which promotes “cop killings, prostitution, anti-Semitism, anarchy, and the suppression of speech and religion.”

On September, “Mr. and Mrs. Dow sent out a campaign fundraising request via email on his birthday. This email sought financial campaign contributions and stated, “Dan needs to know more than ever that you support him, and he really needs your financial support so he can keep leading the fight in SLO County 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.

“We had planned his kickoff re-election campaign fundraiser to be this month, but due to COVID and all the crazy protest activity, we were not able to pull it off.”

The fundraiser continues, “You can send Dan a Happy Birthday message in the comments section when you make a generous financial contribution TODAY to his campaign for reelection.” “Your support will help to ensure that Dan will continue in spite of the ‘defund police’ and George Soros type of opposition happening against DA’s all over the state and nation.”

The judge rules: “The September 4, 2020 email establishes a clear conflict of interest.”

First, he writes, “by delivering this fundraising email to potentially tens of thousands of people immediately after the filing of charges, Mr. Dow sought political and professional benefit and campaign contributions in conjunction with the prosecution of the above-entitled cases. This creates bias towards charging and the particular outcome, which makes it unlikely that the defendant will receive fair treatment during all portions of the criminal proceedings.”

Second, “the statement used inflammatory terms such as ‘anarchist,’ ‘crazy’ and ‘wacky.’ which is an extrajudicial statement made to potential jurors in an attempt to sway them and get them to make a financial contribution. This interferes with the Defendants’ right to a fair trial.”

What is particularly striking here is the continued extrajudicial comments by the DA as cited here by the Judge Guerrero and yet when. new video evidence came to light in the related case against Sam Grocott, both in the local newspaper and on the Vanguard, Dow’s office cited California State Bar Rules of Professional Conduct, Rule 3.6 regarding statements “by counsel likely to prejudice an adjudicate proceeding…”

But a broader question, beyond the specifics of this case and the ruling by Judge Guerrero is why is AG Becerra and his office defending the DA’s conduct here by appealing the judge’s ruling rather than taking over the case, and dropping the charges against the protesters?

This is hardly the first time—the Attorney General’s conduct in the Orange County informant scandal calls into question what exactly the AG’s priority is.

In 2017, after Orange County Judge Thomas Goethals first recused the Orange County DA’s office and then dismissed the death penalty from a possible punishment in the Scott Dekraai case, the AG, despite his professed opposition to the death penalty, sought to get it reinstatement despite the judge’s finding of “outrageous governmental misconduct.”

In the wake of multi-year hearings, Judge Goethals, himself a former prosecutor and Republican judicial appointee, ruled against both AG offices and felt that the only thing he could do to send the message was to remove the death penalty option.

“In this court’s view, these truths matter,” he said. “To ensure the ongoing integrity of the justice system, courts must demand that everyone follow the same set of rules.”

The judge stated plainly: “This court believes that maintaining the integrity and viability of Orange County’s criminal justice system remains of paramount importance.”

Scott Moxley, of the Orange County Weekly, at the time asked the basic question, “Why Is California’s AG Turning Blind Eye to Orange County Deputies’ Perjury?

The ultimate fallout of this scandal was tremendous, with Judge Goethals removing the DA’s office from the Dekraai trial and ultimately sentencing Mr. Dekraii to life in prison—and revelations have led to retrials for dozens of cases potentially tainted by the scandal, and even the dropping of some cases.  Ultimately the DA, Tony Rackauckas, was defeated in reelection in 2018 as a result of this scandal.

And yet, just as in the case of Arata, first Kamala Harris and then Xavier Becerra did next to nothing to hold the prosecutors accountable and, if that wasn’t bad enough, they actually attempted to defend the DA’s office.

As many in the state look to Governor Newsom to appoint a new AG, should Becerra’s nomination to a federal post be confirmed by the Senate, a critical issue before everyone should be prosecutorial accountability.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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