Black Lives Matter Motion to Recuse DA Proper

Every month, we receive at least one phone call from a person seeking to disqualify a judge or a district attorney.  Our office was successful many years ago in having a judge substituted out of a case in San Bernardino County Superior Court, although we had to appeal the trial court and appellate court rulings to the California Supreme Court. 

The following case deals with removing (“recusing”) a district attorney or an entire district attorney office from a case, so we summarize this for our readers, as it a common issue of concern.

Following the death of George Floyd, Jr., on May 25, 2020, college students in San Luis Obispo marched through the streets of San Luis Obispo and onto Highway on July 21, 2020, to protest his death and bring attention to police misconduct.

On this day, approximately 300 people marched and images of the marchers surrounding cars on Highway 101 appeared in national media outlets.  Serious injury was narrowly avoided on at least two occasions when motorists attempted to driver around the marchers.

Prosecutors described Tiana Arata Wentworth (“Arata”) as the marchers’ de facto leader.  She faced thirteen misdemeanor counts of false imprisonment, obstruction of a thoroughfare, unlawful assembly and disturbing the peace.

 

Robert Lastra, Jr., was also charged with felony vandalism for breaking a car window as it drove through the crowd of protestors on Highway 101. 

Ms. Arata filed a motion under Penal Code § 1424 to disqualify the entire San Luis Obispo County District Attorney’s Office from prosecuting her case.  Mr. Lastra, another college student, and all the other defendants charged in connection with the protests joined the motion, which described San Luis Obispo (Head) District Attorney Dan Dow as “aligned with right-wing conservative political organizations and fundamentalist religious groups that seek to vilify the Black Lives Matter [BLM] movement.” 

Her motion argued that Dow’s antipathy toward BLM-inspired protests slanted his office’s investigation and motivated him to file charges against Arata, Lastra and the other co-defendants.

The trial court surprisingly granted the motion and directed the Attorney General to represent the People going forward.

The San Luis Obispo District Attorney’s Office and the Attorney General appealed this order to the Second Appellate District.

The Second Appellate District in People v. Robert Anthony Lastra, Jr., et al., affirmed the trial court’s order.

The Second Appellate District’s opinion started with discussing Penal Code § 1424, which “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 such a motion “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(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.

Under § 1424, there is a two-part test for disqualification.  First, a court must determine whether there is a conflict of interest.  Second, 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, 106.

The appellate court then explained some of the facts it had to review.  It explained that Dan Dow had appeared on “Washington Watch” with Tony Perkins of the Family Research Council, which had described the Black Lives Matter movement as a “Marxist” group who promote “cop killings, prostitution, anti-Semitism, anarchy and the suppression of speech and religion.” 

Dan Dow also was on the record as calling the “defund police” and “George Soros type of opposition” happening against all DA’s all over the state and nation. 

Mr. Dow also wrote a letter to the local paper advising “Candace Owens is a bright and intelligent, fearless woman and a role model for young women everywhere. . . She speaks the truth” after Ms. Owens spoke at a fundraiser to the “New California,” a secessionist organization, and called BLM “one of the most racist movements that ever existed in this country.”

The appellate court therefore concurred with the trial court in finding that substantial evidence showed Dow and his office were not likely to treat respondents fairly.

For more information about disqualifying a prosecutor or the entire District Attorney’s Office due to a conflict of interest, please click on the following articles: