In 2020, we dealt with monumental change, including the COVID-19 pandemic and the death of George Floyd, a Black man who was murdered by a police officer in Minneapolis, Minnesota, in May that year. Floyd’s death was a powder keg moment that led to widespread protests throughout the country, including right here in San Luis Obispo County.
In July 2020, then 20-year-old activist Tianna Arata led hundreds of demonstrators to Highway 101, blocking lanes in both directions for approximately an hour. District Attorney Dan Dow charged Arata with 13 misdemeanors over the incident and charged six other demonstrators who were involved.
This long and protracted case remains fresh in people’s minds, especially Dow, who twice appealed a local judge’s ruling that his office could not prosecute because of his political opinions. The opinions in question appeared in the form of a September 2020 political fundraising email from his wife, Wendy Dow, on his behalf. The email claimed Dow was “leading the fight against the wacky defund police movement.” San Luis Obispo Superior Court Judge Matthew Guerrero ruled the email was a “clear conflict of interest.”
The state Appellate Court agreed, and the California Supreme Court decided on Jan. 11 that it would not hear arguments regarding the local DA’s participation in prosecuting the case. This means the California Attorney’s General Office will now prosecute the case.
Regardless of how one feels about the case, this is a blemish on Dow’s record as a prosecutor for a couple of reasons.
Justice is blind, at least that’s what it’s supposed to be. A District Attorney is supposed to impartially try a case based on the rule of law, not lead a fight against any political or social movement.
Around the time his office charged Arata, Dow appeared on Washington Watch with Tony Perkins, a daily politics broadcast that prominently featured the views of Perkins, who was known for describing the Black Lives Matter movement as a “Marxist” group that promoted “cop killings, prostitution, anti-Semitism, anarchy, and the suppression of speech and religion.”
In September 2020, Dow appeared on the private far-right Facebook group “PRotect Paso” to beg for leniency from its hostile members and explain why he charged Arata with misdemeanors instead of felonies. The group was formed in fear of and in opposition to local BLM protests, with its members regularly and feverishly disparaging the movement.
In October 2020, Dow spoke alongside conservative activist Candace Owens at a fundraiser for “New California,” a far-right organization that pushed for a new state to be formed within California. At the event, Owens described the BLM movement as “one of the most racist movements that ever existed in this country.”
Dow himself may not have personally echoed those statements, but he used the Arata case as a springboard to enter the political conversation about it. Clearly, Dow was more concerned about appealing to his political base than exercising professional, prosecutorial discretion.
In their appeals, the DA’s Office argued the local judge’s decision infringed on Dow’s First Amendment rights and it would have long-lasting implications against prosecutors expressing their political ideologies—that a defendant could easily request prosecutors be taken off their case based on those grounds. However, the First Amendment is not under threat. A district attorney can absolutely exercise their particularly unwise choice to opine or align with those who opine about the politics involved in their cases. However, making that choice has clear consequences, as that completely shatters the veneer of fairness.
If he wants to express his political views with direct ties to his cases or politically align himself with those with similar views, Dow should resign and seek public office that won’t jeopardize people’s rights to a fair trial.
Every time Dow’s handling of the Arata case is discussed, his supporters often pivot to talking about the Arata case itself as if these particular sets of rulings have any actual bearing on the case’s facts. They don’t. They relentlessly dwell on Arata and the way she chooses to live her life, but what’s happening at this very moment has nothing to do with her and has everything to do with Dow.
For more than two years, Dow’s supporters chatted obsessively about demonstrators being punished to the fullest extent of the law with their digital tiki torches on full display, but rarely do they lament how Dow’s zeal for the political spotlight have effectively reduced the credibility of any prosecution.
Because of Dow, the state Attorney General’s Office now has an uphill battle to prosecute a years-long case that requires meticulous review for any potentially political decisions involved in how the case was originally presented. One of those decisions involves the DA’s Office allegedly cajoling a “John Doe” witness into claiming victim status. In October 2020, an attorney representing the unnamed witness claimed one of the DA’s investigators told his client that “it would really help us out if you were scared” as one of the freeway drivers blocked by demonstrators.
How embarrassing for the DA’s Office and SLO County. ∆
Aaron Ochs has lots of opinions and shares them from Morro Bay. Write a response for publication by emailing letters@newtimesslo.com.
This article appears in Jan 19-29, 2023.
So a prosecutor is not allowed to criticize a crime, nor be zealous in prosecuting criminals, and must instead treat the prosecution and defendant evenly in order to be “fair? That seems to be confusing the role of prosecutor with that of the judge. Instead, our system requires both sides to vigorously represent their clients, the people or the defendant, within the limits of the law. Being ” too dedicated” is not one of those restrictions, nor is being “too opinionated” that the crime was a bad thing. A defense attorney has an obligation to represent even a guilty client as vigorously as possible without breaking the law, even if it returns a violent murderer to the street to kill again. It is the court’s job to sort it out and determine guilt. And, mentioning the role of participating organizations is not prohibited, or we wouldn’t have heard so much about the Proud Boys or Oathkeepers in recent prosecutions.
The are those who feel that fairness requires that each side be given an equal chance to win, and that the fact that an overwhelming proportion of criminal defendants are convicted or plead guilty is “unfair”. I expext that there are some defense attorneys that feel this way, as the vast majority of their clients are in fact guilty, and are likely to be found guilty, something which must discourage their competetive instincts, so they are happy to see a win for ” our side”.
Arata chose to commit her crime in full view of the public, and there is little dispute of the facts, nor a chance that a ” tainted” jury pool might convict a factually innocent party. Her supporters were just hoping for a dismissal or “do over”, like the treatment given rioters in other cities. Of course, after Kamala Harris bailed out rioters, I can understand how they might get that idea. But the people of SLO have seen where that approach has taken these other cities, and we should be allowed to protect ourselves.
Since our Mr. Donegan obviously understands the law so much better than the Superior Court, Appellate Court, and California State Supreme Court, I trust that he conveyed his corrections to them. Bless his heart. Here’s the thing: Dan Dow is expected to evaluate a case on its merits: What is the evidence? What is the threshold of evidence required in the matter to convict? Is there a likelihood of conviction? What he ought not do is prosecute vigorously (or, as he also has done, simply decline to prosecute at all, e.g., churches that defied health mandates) based solely on his personal convictions and political beliefs. Justice is expected to be blind even at this prosecutorial stage, to keep the tables from being tilted against individuals perceived as political opponents of the elected official. Dow failed here, and was called out on it at EVERY STAGE of the appeals process. Dan Dow was wrong. John Donegan is wrong. And it’s not a case of whether Tiana Arata and the other defendants committed crimes; that has yet to be adjudicated. The important issue is that Dow’s antics give the impression of prosecutorial abuse, and that taints the process. It’s not unlike the fruit of the poisonous tree, John, in that our trust in Dow’s ability to prosecute fairly has been eroded.
As you liberals keep reminding us every time the Supreme Court does something you don’t like, the judiciary is not immune to politics. A judge who was a public defender is going to see things a lot differently than one who was a prosecutor, or a civil lawyer. The standard of appellate review is not whether or not they would have made the same decision as the trial court. The appellate court usually defers to the trial court, and only overrules one if they applied the wrong law, or there is no way the facts cited by the trial judge court have possibly have supported their decision – a very high standard to meet, which is why most appeals fail.
The evidence that Dow relied upon is on video and photographs, and was never really in dispute. It was a very strong case. The only way a jury wouldn’t have convicted is if the defense could pursuade them to engage in jury nullification. Essentially pursuading a jury that “oh, those wacky high spirited kids just couldn’t help themselves. The just HAD to take over and block the freeway”. A decision to not prosecute would merely have been one of the cravenly political gestures often engaged in by our crime-ridden,dysfunctional cities. SLO is better than that.
Dear John,
¯_(ツ)_/¯
Sincerely,
Everyone
We could rename Hwy 101 through SLO the Edmund Pettus Freeway.
Only in the self-absorbed, self-pitying minds of kids could the brutal attacks on peaceful civil rights protesters be compared to the gentle arrests of those who deliberately shut down a freeway, imprisoning the occupants of the cars, and attacking one of the drivers for refusing to obey their roadblock. None of you kids would have lasted for a moment during the real civil rights campaign, although your hysterical caterwauling would still be echoing.
John,
Standard of review governs an appellate court’s deference. Here, the appellate court reviewed the trial courts conclusions of law de novo. De novo review means the appellate court reviewed the law irrespective of the trial courts conclusions – the least amount of deference. The biggest obstacle the District Attorney and Attorney General’s office faced in their appeal is the pertinent statute for disqualifying a prosecutor. “A ‘conflict of interest,’ in the context of statute governing disqualification of district attorney, exists whenever the circumstances of a case evidences a reasonable possibility that the district attorney’s office may not exercise its discretionary function in an evenhanded manner.” (Cal. Penal Code 1424.) The use of “reasonable possibility” sets a very low bar for the finding. The case citation for the published opinion is 83 Cal.App.5th 816, you can read all this for yourself if you’d like.
The appellants did try to raise an evidentiary issue regarding proper authentication of exhibits. The reviewing court’s response as to that claim was brief because of a hearsay exception.
@John David: Admittedly, my appellate experience only extends to civil matters, so the criminal realm is unfamiliar to me. But when I hear the term “conflict of interest”, I tend to think of situations such as when the Defendant is related to the DA, rather than the DA disapproves of the crime too strongly and vocally. In most high profile prosecutions I have observed, the prosecutors have loudly denounced the defendant’s charged conduct, and I am unable to recall a case in which they have been removed because of it. For an adversarial system in which each side is expected to vigorously pursue its case, that seems incongruous. The ” reasonable possibility” standard you stated seems very broad and gives the trial judge almost complete discretion to rule any way they want. In any event, the disqualification was hardly the “slam dunk” that Mr Ochs depicted, nor did it show misconduct. In fact, being critical of the “wacky defund the police movement” seems to have been adopted by most of the original proponents, once crime soared and it became a political liability. Those proponents are now claiming they didn’t actually support the idea, and explaining what they “really meant” when they appeared to endorse it. Perhaps Dow was just ahead of his time.
It’s pretty fascinating, to me, how someone with no criminal appellate experience believes they know better than the State Appellate Court and Supreme Court.
To be honest I think we all may be missing the forest for the trees. Whether SLO DA was disqualified appropriately or not is relatively inconsequential; because the case was not dismissed. A different government entity was substituted for SLO DA to prosecute the case. This may be a blessing as it will dispel any appearance of misconduct.
@Aaron Ochs: Perhaps you misunderstood the comments of Mr. David and myself. The law is complicated, and is not always a confirmation or rejection of the feelings of the partisans. Neither of us were arguing that either the appellate court or the Supreme Court thought that removal was necessarily appropriate, just that the trial court’s exercise of its very broad discretion to order removal was upheld. That is, the trial judge in its broad discretion thought it was appropriate, and there were enough facts shown to support that finding. Conversely, if the trial court had denied removal, it would have most likely been upheld as well. Summarized: The trial judge gets wide discretion to make the call, and unless there is nothing substantial to support it, it will be upheld.
No, I completely understood Mr. David’s remarks. I wasn’t referring to his eloquent remarks. I was referring to the OG John, who continues responding to points I never made. “Slam dunk.” Really? Easy with the quotation marks. Please don’t put words in my mouth. This case is complicated, but the District Attorney’s actions were not.
The trial court did exercise broad discretion in their ruling. The foundation was shaky, but the circumstances were unusual. That’s why going through the appellate process was the right thing to do. The trial court ruling needing to be tested further. But be that as it may, the problem is that the DA’s penchant for politicizing the case to his political base set forth in motion the testing of “reasonable possibility” as mentioned in Cal. Penal Code 1424.
Why don’t we hear about Republican Judges in the running for San Luis Obispo county?
Can’t even pull up anything about Republican lawyers on our phone in Google to read so you have a name to write in on the ballot?