From: LA Times
By: James Queally, 6/07/2021
In his bid to unseat Jackie Lacey as head of the nation’s largest prosecutor’s office last year, George Gascón didn’t simply attack her record of declining to prosecute police officers who killed unarmed people — he promised to go a step further and undo what he saw as her mistakes.
Gascón identified four shootings that he believed should be reviewed, including the 2015 killing of a homeless man by an LAPD officer whom former police Chief Charlie Beck asked Lacey to file charges against. After his election, Gascón moved to hire a decorated special prosecutor, Lawrence Middleton, to review the cases.
But nearly six months into Gascón’s tenure as Los Angeles County district attorney, Middleton has yet to sign his employment contract, and the delay could severely hinder Gascón’s ability to bring charges against officers in any of the cases he singled out.
The statute of limitations to bring manslaughter charges in three of the four shootings Gascón cited has passed, meaning if Middleton reopened any of them, he would face the extremely difficult task of convicting a police officer of murder.
Under California law, the statute of limitations for manslaughter is six years. In two of the cases that many believed ripe for a criminal filing — the 2015 killings of Brendon Glenn in Venice and Hector Morejon in Long Beach — those deadlines passed in April and May, respectively.
“From a pure, intellectual, legal perspective, once you take manslaughter out of the equation because of the statute of limitations, these are not, and should not, be viable cases,” said attorney Michael Schwartz, who has successfully defended police officers in a number of controversial killings in California.
Schwartz is not currently involved in any of the cases Middleton has been asked to review, though in 2013 he did briefly represent the officers who shot and killed Ricardo Diaz Zeferino in Gardena, the oldest of the cases that Gascón highlighted.
The filing of murder charges against police officers is rare, and successful prosecutions are even less frequent. Since 2005, 142 police officers have been arrested on charges of murder or manslaughter in the U.S., according to data tracked by Phillip M. Stinson, a criminologist at Bowling Green State University in Ohio.
Only 44 of those officers were convicted of any crime, according to Stinson’s research. Seven were convicted of murder.
“What we see in those cases, quite often, is that officers are convicted of lesser offenses,” Stinson said. “If the lesser offenses are off the table because of the statute of limitations, that makes it an all-or-nothing proposition.”
Middleton said it would not be appropriate to discuss cases he might eventually prosecute. Gascón said he was aware of the tight window to file manslaughter charges when he began discussing the cases on the campaign trail. Although he still thinks murder charges could be viable, he also said the blame for the delay rests with the county’s sluggish and bureaucratic hiring processes.
“There’s still other charges, and we’re going to look very closely, but there’s a very intense bureaucratic process that the county operates under…. That’s my reality. The fact that the statute of limitations in a couple of these cases has run out, you have to go back to the origins,” he said, referring to Lacey’s decision not to file charges.
Of the shootings Gascón highlighted, the only one in which Middleton could consider charges beyond murder is the 2018 killing of Christopher DeAndre Mitchell by Torrance police. Mitchell had been accused of driving a stolen car and officers said they saw him reaching for a weapon between his legs when they shot him seated inside the vehicle.
Mitchell died at the scene and an airsoft rifle was recovered, according to 2019 memo issued by the district attorney’s office when prosecutors declined to charge the officers.
Gascón decided to hire an outside attorney to review the cases because prosecutors in the office’s Justice Systems Integrity Division, which normally handles police shooting cases, previously declined to bring charges in each killing.
Despite announcing the plan to review the old cases months before he was elected, Gascón said he did not have a job candidate in mind until he sought the Board of Supervisors’ permission to hire Middleton in February. The board approved the move in March, less than six weeks before the deadline to file manslaughter charges in Morejon’s death.
Once he is hired, Middleton’s primary task will be to review the four cases Gascón highlighted during the campaign. That list could expand, according to Gascón, who said Middleton will have wide latitude to review any on-duty killing in which Lacey declined to charge officers. Cases that were pending when Gascón took office will remain in the purview of JSID, as well as new fatal use-of-force cases.
The Board of Supervisors approved $1.5 million in funding for Middleton’s position, though Gascón said that will also be used to hire outside attorneys and investigators who will work under the special prosecutor. Gascón said he could not offer an exact amount that Middleton would be paid because he will have to bill the county for his hours.
Middleton’s hire was further complicated by conflict-of-interest concerns. As of late May, he was still serving as counsel for two defendants in three criminal cases being tried by the district attorney’s office.
Two of the cases involved a single defendant, Larthan Merriweather, who was facing weapons, theft and forgery offenses. Middleton was also representing a man accused of misdemeanor elder abuse in a third case.
Last month, Deputy Dist. Atty. Sean Carney filed a motion asking a judge to remove Middleton in one of Merriweather’s cases, sparking another round of public criticism of Gascón from line prosecutors who have opposed many of his reform-minded policies.
Even though the county’s lawyers had drawn up a document waiving concerns about any conflict, a position Gascón says he agreed with, Carney filed the motion without informing the district attorney, according to two people with knowledge of the situation who requested anonymity to discuss the matter candidly.
Both Middleton and Carney declined to be interviewed for this article. California law prohibits an attorney from operating as both a “public prosecutor” and defense attorney within the same jurisdiction. In his motion, Carney argued Middleton’s involvement in Merriweather’s case violated that rule.
In court last month, Middleton said Carney was aware he was trying to find a new lawyer for Merriweather and argued there was no need for the prosecutor to file the motion.
“I was somewhat blindsided and felt somewhat sandbagged,” Middleton said.
But Middleton also repeatedly argued that there was no conflict of interest since he had yet to formally accept the job, and his role as special prosecutor would be solely focused on the prosecution of law enforcement officials rather than defendants like Merriweather. Gascón said this month that Middleton would begin his role as special prosecutor soon but did not specify an exact date.
L.A. County Superior Court Judge David Fields threw Middleton off the case after an hour-long hearing late last month.
“The conflict has occurred and is occurring … this is in the public. You’re taking this job,” Fields said. “It’s the appearance of impropriety.”
As of Friday, Middleton had voluntarily stepped away from the other two cases, according to Alex Bastian, a special advisor to Gascón.
Laurie Levenson, a former federal prosecutor who teaches at Loyola Law School in Los Angeles, said the fracas over Middleton’s hire is indicative of the broader struggle Gascón has faced in trying to make seismic changes within the district attorney’s office.
“Gascón is so eager to make big changes, and to bring in people to show the public that he’s going to be different, that nobody is focusing on the details,” she said. “And the details turn out to be important.”