A Los Angeles judge has ruled that a defense lawyer whom District Attorney George Gascón appointed as special prosecutor to review officer-involved shooting investigations cannot simultaneously represent criminal defendants.
L.A. County Superior Court Judge David R. Fields said the appearance of impropriety risked eroding public confidence in the criminal justice system.
Lawrence S. Middleton is a former federal prosecutor best known for winning convictions against the officers who beat Rodney King. He also once headed the criminal division of the
U.S. Attorney’s office in Los Angeles.
His political profile was raised in February when Gascón appointed him to serve in the role of special prosecutor, focusing on cases of cops previously cleared of criminal charges. A defining moment in Gascón’s successful campaign for district attorney last year was when the 67-year-old promised to reopen cases of fatal police shootings in L.A. that his predecessor had declined to file charges on. The selection of Middleton was seen as a rebuke to the DA’s Justice System Integrity Division, which normally handles cases involving possible police misconduct.
In a letter from Gascón asking the L.A. County Board of Supervisors to authorize the hire, he said that the future special prosecutor will “take all actions necessary to investigate, and if warranted by the evidence, prosecute on behalf of the D.A. any potential criminal activity by law enforcement officers in the designated cases at the discretion of the DA.” Here’s the issue: Middleton was still defending clients 64 days after the County Board approved Gascón’s request to hire him as special prosecutor on March 23, setting aside funding of up to $750,000 for the special prosecutor contract in the DA’s 2020-21 final budget, and up to $1.5 million annually for the four-year term of the contract (with an option to extend for an additional four one-year options).
Under California law a lawyer can’t be on both sides of the ledger. But Middleton is representing a client named Larthan Merriweather in two separate felony cases in L.A. Superior Court. To address the apparent conflict, in April, Gascón directed the County Counsel’s office to draft a waiver that would create an “ethical wall” separating Middleton and the prosecutors assigned to the Merriweather cases.
But Sean Carney, a seasoned deputy district attorney heading the prosecution in one of the Merriweather cases, spotted the issue and, in a pair of court motions, argued that Gascón’s waiver was impermissible under state law. Judge Fields agreed, giving the defense attorney an ultimatum: Either Middleton will be accepting Gascón’s offer of work, which means he can’t represent people Gascón is going to be prosecuting, or he’ll be declining Gascón’s offer in order to continue to represent clients.
Fields said the so-called dual representation raises the possibility that Merriweather won’t get a fair shake. It could give the appearance that Middleton, out of fear his contract would be terminated, would pull punches for his client. Or it could be perceived that Middleton’s new job with the DA. would work unfairly to his client’s advantage.
“I don’t think you would do this. Again you have an exemplary record, Mr. Middleton,” Fields said, according to the Daily Journal. “But it’s the appearance of impropriety. It’s the public confidence in our criminal justice system that is paramount here. And the fact of the matter is it cuts both ways against you.”
Middleton told the judge that he was in the process of finding new counsel for his client when he was blindsided and “somewhat sandbagged” by the two court memoranda that Carney filed late last week. Reached by phone on Thursday, Middleton declined to comment. But sources close to him dismissed the flap as a political diversion and say the attorney was unprepared for the controversy his appointment has generated. The district attorney’s office did not immediately respond to a request for comment. We will update this post if we hear back from them.
The judge’s surprising decision on Middleton comes at a particularly sensitive time for Gascón. This week a recall effort against him was officially launched by law-enforcement officials, including L.A. County Sheriff Alex Villanueva, and the families of crime victims.
A judge kicking Middleton off a case for an unwaivable conflict will likely embolden the veteran prosecutors inside the DA’s office testing the waters for a possible run for the top job if Gascón falters, who say that their boss routinely ignores the law. Deputy District Attorney John McKinney of the major crimes division tweeted: “The obvious conflict of interest was acceptable to Gascon.” Jon Hatami, head of the DA’s child abuse unit and one of Gascón’s more vocal critics, tweeted, “You cannot be a prosecutor and a defense attorney at the same time. Any experienced DA would know this.”
The DA wields wide discretion to carry out what he interprets as his voter mandate, but there’s little he can do to quiet his outspoken in-house critics, who technically work for the county, not the DA, and enjoy considerable job protections through the civil-service commission.
How the Middleton affair will affect the public perception of the incoming public prosecutor remains to be seen.
Laurie Levenson, a Loyola law professor and former federal prosecutor who supports Gascón’s effort to find out if the cases against police were properly evaluated and reopen any that weren’t, hopes the fallout doesn’t overshadow it. “Lawrence would be a good special prosecutor but he’s not the only person to fulfill that role,” Levenson said. “Gascón needs to decide if he’s the best person or if someone else can fulfill the role in his stead.”
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