Prosecutors are expressing frustration at an order from District Attorney George Gascón that prohibits them from compelling witnesses to testify in criminal trials.
The order, which was not included in Gascón’s publicly issued directives when he took office in December, was conveyed to deputy district attorneys via a private online meeting and email, according to prosecutors and records obtained by The Signal. In his directives published for public view in December, Gascón had prohibited “body attachment” subpoenas for crime victims, but the directive regarding witnesses was not made public.
Now, with criminal trials ramping back up and L.A. County’s murder rate on the rise, several deputy D.A.’s are saying the ban on what are known as body attachment subpoenas for witnesses is leaving their hands tied and allowing violent criminals to go free.
About three times a day on average — now that trials have resumed — a case is dismissed because the prosecutor can’t get a witness to appear for testimony, according to one Los Angeles County preliminary hearing judge who spoke with The Signal on the condition of anonymity.
“That’s just in one courtroom,” the judge added. “So, the number is way larger countywide.”
Subpoenas
In speaking with a number of sources working inside the Los Angeles County judicial system — all of whom spoke with The Signal on condition of anonymity over fear of professional retaliation — the newly implemented subpoena system is leading to the widespread unraveling of a number of criminal cases, especially as it relates to gang-related and domestic violence cases.
Prosecutors have traditionally built their cases around the evidence they plan to present in the preliminary hearing and then, potentially, a jury trial, according to sources inside of the District Attorney’s Office. A primary component to that presentation by the state is testimony provided by witnesses and victims.
“You can’t prosecute a case without witnesses, you literally can’t do anything,” said one deputy district attorney who spoke with The Signal. “It doesn’t matter how great your case is: If you can’t get witnesses to testify, there’s little you can do.”
Numerous attempts to contact Gascón’s office for this story were not returned as of the publication of this story.
Traditionally, the process for attorneys is to issue subpoenas to witnesses and/or victims, informing them that they have been ordered to appear in court. After receiving their subpoena — whether it be delivered, for instance, through the mail or by a sheriff’s deputy — and they still do not wish to appear, then, in many cases, prosecutors may ask their supervisors, and eventually the judge, to issue what is called a “body attachment.”
“Basically, we say, ‘Your Honor, the witness is not coming to court, and we’re asking if you would issue a body attachment,’” said one deputy district attorney. “That gives the detective or police department permission to go out there and detain the witness or victim and bring them to court.”
Simply telling an uncooperative witness that a body attachment is even being considered, according to sources, generally results in their ultimate appearance in court; however, some instances require the actual detainment of the witness and/or victim for a variety of reasons.
“When we do have to detain somebody, they come to court, they testify, then they’re released,” said another deputy district attorney. “We don’t want to re-victimize somebody any more that’s already been victimized.”
There are a number of reasons a body attachment becomes necessary, from fear of retaliation by the defendant or their supporters out in public, wanting to avoid a day spent at court, or wishing to not make the long drive to a faraway courthouse — and there are a number of reasons people are resistant to testifying, sources said.
“I used to do gang murders, and I can’t think of one case where the witnesses were cooperative,” said one source. “It’d be one thing to have a robbery in Beverly Hills … you’re going to have a lot more cooperation because (those) people generally live in very safe neighborhoods … But gang murders generally occur in gang neighborhoods where there’s a lot more intimidation.”
Or, as a judge put it more directly: “Reticent victims or witnesses will come to court often because they know a subpoena can be enforced, and a warrant for their arrest could (be issued), if they don’t come to court. Without the ability to enforce subpoenas, the district attorney would lose their ability to prove their cases in court.”
Change
While compelling or forcing witnesses to testify has been a primary tool of prosecutors for years within Los Angeles County, the process was turned on its head last December when Gascón assumed his office and issued a number of special directives.
Among that series of special directives issued by the county’s top prosecutor were orders for his staff to not pursue the death penalty; prevent youth offenders from being tried as adults; and almost entirely restrict the use of sentencing enhancements in cases. However, specifically within Special Directive 20-12, issued by Gascón on Dec. 7, deputy district attorneys were ordered to stop seeking the coercive court orders when it comes to crime victims.
“Furthermore, DDAs are directed to immediately stop seeking body attachments for victims,” Directive 20-12 reads.
But while publicly stating the order only pertains to victims, several DDA’s contend that, behind closed doors, the order is far more expansive.
Following a Microsoft Teams meeting with Gascón, held the same day as the issuance of the special directives, John Morris, then head deputy at the Van Nuys Courthouse, reached out to his fellow prosecutors to inform them that, among other things, there were more restrictions for them on body attachments than had been previously stated, according to an email obtained by The Signal.
“We will not seek a body attachment for any victim or witness who fails to appear in court,” read the email.
The deputy district attorneys and legal system personnel who spoke with The Signal on Tuesday said that while the “victims” portion was written out for all to see, the witnesses portion would remain unwritten, but understood by all.
“It’s not written anywhere, but everyone knows it’s the rule that you’re not allowed to do it for witnesses either,” said one DDA.
“I was not present on the call where that was allegedly stated … but I have had it confirmed from a couple of other D.A.’s that it was stated,” said another deputy district attorney.
“I was contacted by a judge … who has a D.A. in the courtroom, saying that body attachments can no longer be used for victims and witnesses,” said another DDA.
And while rare that they would request a body attachment for their witnesses, defense attorneys are not specifically mentioned in the order while prosecutors are, according to the deputy D.A.’s.
“Of course, the defense can issue subpoenas and body attachments, but we can’t,” said a prosecutor.
Prosecutors have said that not following the body detachment order — judges are technically still allowed to approve them — or any other orders by Gascón, means facing possible retaliation, whether that be in the form of being chewed out by direct superiors, harassed by Gascón’s in-office supporters, or even publicly ridiculed by their boss himself.
“They (the defense attorneys) are the Yankees, your team is in little league, and you’re (asked to play them) without a bat,” said one deputy D.A.
“He doesn’t want to make it easier for us to do our jobs, he’s making it harder for us to do our jobs,” said another deputy district attorney.
While some of Gascón’s supporters have argued that the initiatives are designed as part of a larger judicial reform in L.A. County, a fight to dismantle what they perceive as systemic racism inherent within the system, the prosecutors have argued that, most importantly, these types of policies harm public safety and actually increase crime.
“If the subpoena becomes just an invitation to come testify, and you’re not forcing people to come to testify, you’re basically telling the gang, ‘I wanted to be here, and I wanted to testify.’ There’s a lot of issues, it has a perverse impact with unintended consequences.”
“As a judge, I don’t know if these cases would have ultimately been proven at trial, but what I do know is that these cases are not even being given a chance,” said the preliminary hearing judge. “And whatever protections the victims had with a protective order or with the defendant being in custody is stripped away.”
Citing the same statistic being highlighted by Sheriff Alex Villanueva in recent weeks, deputy D.A.’s have said that the body attachment policy, as well as a handful of other Gascón policies, have greatly contributed to a 54% increase in homicide in the last year.
“When victims and witnesses do not show up for court, the deputy district attorneys have no way to prove their cases, and their cases are being dismissed at an alarming rate,” said the L.A. County preliminary hearing judge. “Since this policy of not enforcing subpoenas was put into place, at least one-third of the cases that are set for a preliminary hearing are being dismissed due to the district attorney not being able to prove their cases for lack of witnesses.”
“It means more bad guys on the street because we won’t be able to prove the cases up to trial,” said a deputy district attorney.
