By David M. Greenwald
San Luis Obispo, CA – For more than two years, the case against Black Lives Matter protesters languished in the courts as the Attorney General’s office continued to fight to allow the San Luis Obispo DA, under the leadership of Dan Dow, to prosecute the case.
But when the courts upheld the decision by local Judge Matthew Guerrero, and the AGs office was actually forced to prosecute the case, it was almost as if they realized they could not actually prosecute BLM protesters and they dismissed most of the charges.
As Attorney Curtis Briggs, who represented the leader, Tianna Arata, told the Vanguard, had the case been charged as it is now, Arata would have taken diversion and this would have been over in 2020.
However, when the DA seemed to use vindictive prosecution methods, the pool of defendants challenged the DA’s office.
The trial court found that a campaign email from Wendy Dow, wife of the DA, which made references to “crazy protest activity” and “the wacky defund the police movement and anarchist groups,” “established a disqualifying conflict of interest on the part of District Attorney Dow and his entire office.”
The court also found that District Attorney Dow had “associated with two media personalities who were critical of BLM and that he had participated in a Facebook group in which some members had posted statements that disparaged BLM.”
In the view of the AG’s office, “The trial court abused its discretion by ordering disqualification of the District Attorney’s Office based upon unsupported factual findings and incorrect legal conclusions.”
Here the AG argued that the defense “failed to establish that there was an actual and disqualifying conflict of interest, as required by section 1424.”
The AG wrote, “The trial court below fell well short of the statutory standard when it recused the San Luis Obispo County District Attorney’s Office based on the apparent political opinions of the elected district attorney’s personal and political associates.
“The court’s decision also raises troubling First Amendment concerns,” they added. “Taken to its logical conclusion, the decision encourages defendants to employ recusal as a trial tactic to disqualify district attorneys who hold, or even appear to hold, political opinions that differ from those of a defendant.”
But after wasting two years and a huge amount of money and resources fighting to keep the case with the SLO DA, the AG’s office finally relented.
“I do think there’s a problem with the way the Attorney General does business,” Briggs told me. “They argued the entire time that Dan Dow shouldn’t be disqualified, but probably the biggest piece of evidence he should have been disqualified is what the difference between what they viewed should have been charged and what Dan Dow viewed should have been charged.”
In court the AG’s office said that this decision was “based on their independent prosecutorial discretion.”
The result, Briggs said, was “it resulted in a landslide of dismissals.”
He charged, “It’s disingenuous that they took the position the entire time that Dan Dow should have been prosecuting that case, when they knew the entire time that he had exaggerated all those charges, that he was charging things that even the Attorney General believes couldn’t be supported.”
What remains now is a single count of obstructing the roadway by Arata.
“Most likely we’re going to put in a request for diversion, and I doubt that the Attorney General will oppose it for Tiana or for most of the other defendants because they don’t have a criminal history,” Briggs said. “So basically this will likely just resolve and everybody will get this off their record.”
Briggs pointed out it took two and a half years “just to get what probably should have happened in the first place. At most, Tiana should have been charged with a disturbing the peace or obstructing the roadway.”
He added, “A lot of other people should have been charged with that too. She shouldn’t have been singled out. In that sense, it’s unfair.” But he said “she’s always been willing to accept responsibility for exactly what she did.”
Prior to being disqualified, Dow’s office offered everyone but Arata diversion.
“They were still trying to single her out and punish her as the ringleader, just like they were in the beginning,” Briggs said. “The Black Lives Matter protesters were all pissed off and saw that that was simply proof that the entire thing was unfair from the start—so they all refused to take (the deal).”
The actions of the AG’s office is difficult to square with the image of reformer that Bonta had in the Assembly or when he was appointed by Governor Newsom in 2021.
It was almost as if, after defending the DA’s office for two years, they suddenly recognized that they couldn’t actually get away with prosecuting BLM protesters.
Sadly, this case is not alone.
Last week, a San Francisco judge declined to disqualify San Francisco DA Brooke Jenkins and her office from prosecuting Troy McAlister.
Troubling here were some of the arguments put forth by Deputy AG Sharon Lockner. She was dismissive of claims that Jenkins committed misconduct when she allegedly emailed the rap sheet of McAlister to a colleague using a private email—on a case that neither was actively working on.
She argued that it was one DA sending a file to another. She said the burden was on the defense to show misconduct and that it was something “extraneous to their official duty.”
The judge responded that they weren’t assigned the case and were in fact leaving the office.
Lockner responded, arguing that DAs are for purposes of cases “interchangeable.”
She argued, further, that even if there is misconduct “recusal is not the remedy for prosecutorial misconduct.”
Judge Farrell asked what if the bar says this was misconduct?
Lockner responded, “That doesn’t change our position.” She said that the case law showed that disqualification is not the remedy for misconduct.
In both cases, instead of exercising critical independent oversight and cracking down on wrongdoing and bias in the local DA’s office, the AG’s office has seemingly blindly rubberstamped their conduct and left it to other agencies to act as oversight and hold the DA accountable.
Ultimately it was the courts in the BLM case—and no one thus far in McAlister.