District Attorney may be recused for hostility to Black Lives Matter

People v. Lastra (Cal. Ct. App., Aug. 31, 2022, No. 2D CRIM. B309895) 2022 WL 4493826, at *1, as modified on denial of reh’g (Sept. 28, 2022)

 Summary: College students faced criminal charges for marching through the City of San Luis Obispo following the murder of George Floyd, Jr. in 2020. The trial court granted their motion to recuse District Attorney Dan Dow’s office from the case because of Dow’s association with critics of the Black Lives Matter movement. (Penal Code, § 1424.) The District Attorney and Attorney General appealed.

The trial court stated: “[N]o defendant is entitled to a prosecutor to which they are politically or socially or ideologically aligned.” “The men and woman charged here,” however, “are entitled to a prosecution not clouded by political or personal advantage to the prosecutor.” Substantial evidence supported the trial court’s determination that Dow and his office were not likely to treat respondents fairly. The Court of Appeal affirmed the order granting respondents’ motion to recuse.

Motion to disqualify  District Attorney’s Office (§ 1424.)

The motion described District Attorney Dow as “aligned with right-wing conservative political organizations and fundamentalist religious groups that seek to vilify the Black Lives Matter [BLM] movement.” The motion asserted that Dow’s antipathy toward BLM-inspired protests slanted his office’s investigation and motivated him to file charges against the defendants. The trial court granted the motion and directed the Attorney General to represent the People going forward.The District Attorney and Attorney General appealed.

Section 1424 “sets forth the procedure for a defendant to seek an order … recusing a member of the district attorney’s office, or the office as a whole, for a conflict of interest.” (People v. Griffin (2004) 33 Cal.4th 536, 569.) The procedure “constitutes a statutorily authorized judicial interference with the executive branch’s constitutional role to enforce the law.” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 374.) The trial court may not grant a motion to recuse “unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” (Penal Code, § 1424, subd. (a)(1).) A conflict exists “whenever the circumstances of a case evidence a reasonable possibility that the DA’s office may not exercise its discretionary function in an evenhanded manner.” (People v. Conner (1983) 34 Cal.3d 141, 148.)

Section 1424 provides a two-part test for disqualification.

1. The court must determine whether there is a conflict of interest.
2. The court must determine whether the conflict is so severe as to disqualify the district attorney from acting.” (Spaccia v. Superior Court (2012) 209 Cal.App.4th 93.)

An appellate court reviews the trial court’s findings of fact for substantial evidence and its conclusions of law de novo and reverses its application of law to the facts “only if arbitrary and capricious.”

District Attorney rights to freedom of speech and association

“[T]hat a public prosecutor might feel unusually strongly about a particular prosecution or, inversely, might hesitate to commit to a prosecution for personal or political reasons does not inevitably indicate an actual conflict of interest, much less a constitutional bar to prosecution.” (People v. Vasquez (2006) 39 Cal.4th 47.) In exercising these rights, a prosecutor cannot deprive those he prosecutes of their own right to a fundamentally fair trial. Our trial courts are best positioned to determine when this is likely to occur. (See Haraguchi, supra, 43 Cal.4th at p. 713, 76 Cal.Rptr.3d 250, 182 P.3d 579 [“trial courts are in a better position than appellate courts to assess witness credibility, make findings of fact, and evaluate the consequences of a potential conflict in light of the entirety of a case, a case they inevitably will be more familiar with than the appellate courts that may subsequently encounter the case”].)

Here, the Court of Appeal declined to substitute its judgment for that of a trial court familiar with the social, legal, and political dynamics of San Luis Obispo County and affirmed the order granting the motion to recuse.

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