By KAREN VELIE
Three appellate court judges will determine early next month if San Luis Obispo County Judge Matt Guerrero’s ruling to recuse the entire district attorney’s office in cases regarding Black Lives Matter protesters followed legal requirements.
During a July 21, 2021 BLM march, Tianna Arata allegedly led approximately 300 protesters onto Highway 101, blocking all lanes in both directions for nearly an hour. While on the highway, protesters ran after vehicles attempting to drive off the freeway and yelled profanities at some of the drivers.
Prosecutors charged Arata with one count of unlawful assembly, one count of disturbing the peace, six counts of obstruction of a thoroughfare, and five counts of false imprisonment — all misdemeanors.
The district attorney also filed two misdemeanor charges against Jerad Hill, three misdemeanor charges against Sam Grocott, a felony charge of vandalism and a misdemeanor charge against Robert Lastra, four misdemeanor charges against Marcus Montgomery and one misdemeanor charge each against Joshua Powell and Amman Asfaw.
During a Dec. 10, 2020 hearing, defense attorneys argued that District Attorney Dan Dow’s personal political opinions jeopardized the seven defendants’ rights to a fair trial, and that local prosecutors should be replaced by the California Office of the Attorney General.
In opposition to the defense, local and state prosecutors argued against the disqualification, noting the defense is required to show an actual conflict of interest and not a perceived conflict.
Judge Guerrero then ruled that the District Attorney’s Office had a clear conflict of interest based on the wording of an email Guerrero said District Attorney Dan Dow and his wife sent to supporters seeking donations. The email asks Dan Dow’s supporters to help him lead the fight against the “wacky defund the police movement and anarchist groups that are trying to undermine the rule of law and public safety in our community.”
In early Jan. 2021, the California Attorney General’s Office and the SLO County District Attorney’s Office appealed Guerrero’s ruling to recuse the entire district attorney’s office because it “fell well short of the statutory standard.”
“The trial court abused its discretion by ordering disqualification of the District Attorney’s Office based upon unsupported factual findings and incorrect legal conclusions,” according to the Attorney General’s Office. “Respondents failed to establish that there was an actual and disqualifying conflict of interest.”
The Attorney General’s Office argues Guerrero relied on newspaper articles and a “patchwork of unreliable hearsay,” which even if reliable does not qualify as a conflict of interest.
“It must be emphasized that these exhibits do not constitute competent evidence under section 1424,” according to the state’s brief. “And the trial court’s reliance on incompetent evidence is emblematic of the flawed nature of its decision.”
Prosecutors also challenge Guerrero’s determination that Dan Dow participated in sending or was aware of his wife’s email.
“Critically, the record is devoid of affidavits from District Attorney Dow, Wendy Dow, or anyone else who might have personal knowledge about whether he knew of or approved the email,” according to the state’s brief.
Even if Dan Dow was aware of the email, the state argues the allegations would still fall well short of the legal requirements because even as an elected official, Dan Dow “is permitted to hold strong, and even controversial, views, including views that do not align with BLM.”
Attorney’s for the alleged rioters argue that Guerrero properly considered the email they claim Dan Dow sent.
“The email established a disabling conflict of interest because District Attorney Dow asked for campaign donations ‘so he can keep leading the fight in SLO county’ and
to ensure he will continue,” according to Arata’s brief. “Thus, District Attorney Dow effectively promised his supporters that if they contributed to his campaign for re election, their money would ensure he would continue prosecuting Black Lives Matter protesters, like Arata.”
Arata’s attorneys also argue that Dan Dow’s attendance at an event in which Candace Owens spoke shows he is biased against the BLM movement.
“At the event, Ms. Owens called Black Lives Matter ‘one of the most racist movements that ever existed in this country,’ ” according to Arata’s brief. “When questioned, District Attorney Dow wrote a letter to the SLO Tribune stating, ‘Candace Owens is a bright and intelligent, fearless woman and a role model for young women everywhere.’ “
Following multiple investigations, law enforcement agencies sought charges against the BLM protesters, who argue the driver of a BMW hit one protester. Investigators determined the protester jumped on the hood of the car, and was not hit.
However, in his brief Lastra argues that “the real potential for unfair treatment is demonstrated by the failure of the District Attorney’s Office to charge motorists who weaponized their automobiles against nonviolent demonstrators.”
Prosecutors argue Lastra’s claim of selective prosecution is not relevant to the appeal, because Guerrero’s ruling was based solely on Wendy Dow’s email. Also, that allowing defendants to disqualify district attorneys based on Dan Dow and his supporters’ political views could weaponize the ability to disqualify.
“Defendants would be permitted to disqualify district attorneys for the opinions of the elected district attorney’s most intemperate supporters,” according to the state. “But district attorneys and their offices may not be disqualified for the views of their alleged supporters or even for their own views.”
The appellate court is scheduled to hear oral arguments at a hearing on June 9.