By KAREN VELIE
Three appellate court judges ruled this week that San Luis Obispo County District Attorney Dan Dow’s personal political opinions jeopardized seven Black Lives Matter defendants’ rights to a fair trial and that local prosecutors should be replaced by the California Office of the Attorney General, a decision that is likely to be appealed because of multiple factual inaccuracies.
In their appeal, prosecutors argued that the alleged facts the trial court relied on, while not calling any witnesses, were false. In his opinion, Judge Arthur Gilbert wrote that the trial court is better at “assessing witness credibility and making findings of fact.” Judge Gilbert then parroted numerous factual errors from the trial court’s ruling.
During a July 21, 2020 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.
While law enforcement sought multiple felony charges against Arata, prosecutors instead charged Arata with 13 misdemeanors. The district attorney also filed charges against Elias Bautista, Jerad Hill, Sam Grocott, Robert Lastra, Marcus Montgomery, Joshua Powell and Amman Asfaw.
Defense attorneys argued that 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, a request Judge Matt Guerrero approved.
Judge Guerrero then ruled that the entire District Attorney’s Office had a clear conflict of interest based on the wording of an email Guerrero said Dow and his wife sent to supporters seeking donations. The email asks 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 argued Guerrero relied on newspaper articles and a “patchwork of unreliable hearsay,” which even if reliable does not qualify as a conflict of interest.
Arata’s attorneys referred to the views of people Dow associated with in person and on social media in seeking recusal of Dow’s office. The State Attorney General’s Office referred to the allegations as “guilt by association.”
For example, Arata’s attorneys referred to posts on the Protect Paso Facebook page that chastised the marchers for shutting down the highway and stopping drivers from leaving the area.
Members of the conservative Facebook page voiced their disapproval after Dow’s office did not charge Arata with felonies. Dow responded to the complaints on the Protect Paso Facebook on Sept. 4, 2020.
“I did not cave on anything,” Dow wrote on Facebook. “I am seeking accountability and justice by charging appropriate crimes for what evidence was submitted to my office. The law does not support felonies being prosecuted for the conduct in this case.”
In their brief, Arata’s attorneys argued Dow’s office should be disqualified based on what other people had posted on the Protect Paso Facebook page “that showed strong antipathy toward BLM.”
The appellate judges parroted Judge Guerrero, and referred to the posts of other people on Facebook as attachments to Dow’s post. However, Dow provided no attachments to his Facebook post.
In addition, the appellate judges concurred that Dow’s support of Candice Owens, a conservative black woman, disqualified him from prosecuting Arata because Owens is opposed to the BLM movement.
In his opinion, Judge Gilbert refers to a letter Dow wrote to the Tribune saying “Candace Owens is a bright and intelligent, fearless woman and a role model for young women everywhere.” However, Dow did not write a letter to the Tribune, he answered email questions from former reporter Matt Fountain.
The opinion says that Dow’s office filed charges against only one person, Arata, on Sept. 4, 2020, the same day he posted on the Protect Paso Facebook page and that his wife sent out the email seeking donations. In actuality, Dow’s office filed charges against Arata and Elias Bautista on Sept. 2, 2020, two days before the email or the Facebook post.
Based on multiple factual inaccuracies in Gilbert’s opinion, experienced local attorneys believe an appeal is likely. The State Attorney General’s Office is currently considering its options.