Appellate Court Refuses to Hear Appeal of Recusal of SLO DA’s Office from Prosecuting BLM Protesters

By David M. Greenwald

On Thursday, a California Appellate Court announced that they had declined to hear the appeal of a ruling from San Luis Obispo County Judge Matthew Guerrero, who in December recused the SLO DA’s office after finding that DA Dan Dow was personally conflicted in the case—due to using it to prejudicially fundraise off the prosecution of seven Black Lives Matter Protesters.

The DA as well as the California Attorney General filed appeals of that decision, but on Thursday that appeal was rejected.

In the court’s ruling they noted that they requested a letter briefing from the parties regarding whether the case should be heard.

“In letter briefing, the Attorney General and the District Attorney contend this court should hear this case. In addition, they argue this court should transfer another case pending in the Appellate Division to our court to secure  uniformity of decision,” the court wrote in the brief two-page ruling.  “We decline the appellants’ request that we exercise our discretion to transfer this case to our court for decision.”

The court declined to specify why they are rejecting the case only to order it back to the San Luis Obispo County Superior Court.

“We are glad to have this first appellate win, and we are pleased to now be properly before the County Appellate Division on the merits,” said Brian Ford, attorney for Robert Lasta, one of the defendants charged in the case.

In December, Judge Guerrero took the highly unusual step of recusing the entire San Luis Obispo District Attorney’s Office, citing bias.

“The September 4, 2020 email establishes a clear conflict of interest,” the judge wrote in his decision.

“First, 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,” Judge Guerrero continued.

“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,” he wrote. “This interferes with the Defendants right to a fair trial.”

Curtis Briggs, who represents Tianna Arata, told the Vanguard Thursday, “Dow and the Attorney General misread the black letter of the law.  It was a very simple issue and both of these prosecutors were mistaken.”

He added, “I’m not surprised at this result.”

Ford added, “We feel strongly that Judge Guerrero’s order was necessary and proper—this unlawful prosecution must be stopped! Dan Dow’s office cannot be trusted to prosecute any case involving Black Lives Matter because of his personal bias and racial-political animus.”

He continued, “He is subservient to the more extreme and racist interests of the far right, and he sells his office to further their agenda. Any other prosecutorial agency would have apologized and dismissed this case long ago, or not even charged it in the first place.”

San Luis Obispo Chief Deputy District Attorney Jerret Gran downplayed the decision, stating, “Nothing has changed or been decided. The order from the Court of Appeal in Ventura did not reach a decision on the merits.  It simply switched the court and jurisdiction that will hear the case from the Ventura Court of Appeal to the San Luis Obispo County Superior Court Appellate Division.”

He continued, “Our legal arguments remain the same and we have confidence in our position and remain determined that it is appropriate for the San Luis Obispo District Attorney to remain as the prosecutor in these cases.”

“Procedurally, this means that a briefing schedule will be ordered by the Appellate Division of the Superior Court. After legal briefs are filed by both appellants and appellees, oral arguments will be scheduled and held before any decision is published.”

—David M. Greenwald reporting

Full interview with legal team:

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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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  1. Ron Glick

    Your title has it wrong. Should read “Appellate court refuses to hear recusal …” or maybe  it  should read “Appellate court refuses to hear appeal of recusal…”

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