DA trying to stay on Tianna Arata case — even if it means going to state Supreme Court

The San Luis Obispo District Attorney’s Office is determined to prosecute Tianna Arata and the six other Black Lives Matter protesters for crimes it charged them with following a July 2020 protest — and it’s planning to take the matter to the California Supreme Court if it has to, officials with the office told The Tribune.

On Aug. 31, the California Court of Appeal upheld San Luis Obispo Superior Court Judge Matthew Guerrero’s decision to remove the office, citing a campaign fundraising email sent by San Luis Obispo County District Attorney Dan Dow’s wife in which she said Dow was “leading the fight against the wacky defund the police movement” as a “clear conflict of interest.”

The District Attorney’s Office and the California Attorney General’s Office both filed petitions in the state Court of Appeal on Sept. 15, asking the judges to rehear the case to correct factual errors and omissions they say appear in the court’s opinion. The offices also ask the court to address the impact those corrections may have on the initial ruling, according to court documents.

“The District Attorney fully intends to petition the California Supreme Court for review in this matter should the Court of Appeal opinion remain unchanged,” San Luis Obispo County Assistant District Attorney Eric Dobroth told The Tribune in an email. “As such, a complete and accurate record is essential for the Supreme Court to make an informed decision as to whether it will accept review of the Court of Appeal opinion.”

Curtis Briggs, one of the attorneys representing Arata, called the petition for a rehearing a “temper tantrum.”

“It’s essentially Dan Dow not being able to accept that he’s lost,” Briggs told The Tribune.

Court opinion is ‘misleading,’ prosecutor’s offices allege

The appellate court opinion “contains several factual errors and omissions that warrant a rehearing,” the Attorney General’s Office wrote in its petition.

Two key facts the prosecutor offices say the opinion got wrong were the date charges were filed against Arata and that Arata was the only person charged in connection with the July 2020 protest until amended complaints included the six other defendants in the weeks that followed.

According to court documents, Arata was actually charged on Sept. 2, the day Elias Bautista was also charged with a felony in connection with the protest.

Bautista is not a party on the appeal.

Both prosecutor offices allege the opinion “omits the full context” of Dow’s post in the PRotect Paso Facebook group, calling it “misleading.” The office argues that comments made by members of the group on Dow’s post should not be relied upon in the court’s final decision because “there is no evidence in the record that District Attorney Dow was aware of the comments.”

“(The comments) are unfairly attributed to him,” the district attorney’s petition said. “It is extremely misleading to suggest that whenever a public figure posts on social media, they endorse every or any comment made by any person on that public social media site.”

Comments on Dow’s post included PRotect Paso members calling the Black Lives Matter movement “domestic terrorism” and “down right evil, no brains or souls,” court documents show. Members of the group also discussed their skills as hunters and how they will use those skills to protect Dow and “protect our own.”

The office also said Dow was explaining his decision to pursue misdemeanor charges rather than felony charges in the post, and that he wrote he can only charge for what he can prove and would not “be bullied by anyone, left or right.”

The District Attorney’s Office argued Dow’s entire post should be included as part of the factual record of the appeal because “this was the only public comment made by Mr. Dow regarding the charges.”

In the attorney general’s petition, the office claims the District Attorney’s Office’s statement in response to a petition for Dow to drop charges against Arata — which said the office “would follow the law without regard for political pressure or political sentiment” — was omitted from the court opinion.

The District Attorney’s Office also argues that evidence considered by the appellate court infringes on Dow’s First Amendment right to free speech — namely his appearance on Tony Perkins’ radio show, which has expressed disdain toward the Black Lives Matter movement.

Dow and Perkins did not speak about the BLM movement on the show, and there’s no evidence Dow knew about Perkins’ statements about the movement, the office says.

“This is extremely misleading — leading this court to conclude that Mr. Dow was there to discuss the protest cases in the instant matter or BLM generally ... which is completely false,” the district attorney’s petition says.

In oral arguments in June, Deputy California Attorney General Christopher Lee did notify the court about this distinction, telling the judges Dow was on the August 2020 program to discuss COVID-19 policies and restrictions.

Dow’s support of conservative commentator Candace Owens was also contested.

Endorsing a post in which Owens discussed the Black Lives Matter movement and other topics, Dow said “she speaks the truth,” but Lee argued that statement does not directly indicate Dow’s thoughts and feelings about the movement.

The District Attorney’s Office argues Dow’s statement to The Tribune in which he called Owens “a role model for young women everywhere” was an email response to a general question about Owens — not a letter regarding a question about Owens’ opinion of the Black Lives Matter movement.

The office also asks for the court record to reflect that Arata was released from jail the same day as her arrest, and that Dow’s wife’s campaign email never mentioned Black Lives Matter, Arata or the protests.

Dan Dow has ‘ethics of a pimp,’ defense attorney says

Briggs said that Dow’s office continuing to try and stay on the case is a “publicity stunt” and that if Dow truly wasn’t biased, he should have argued and stood up for himself personally in court, or at least signed a declaration clarifying his wife’s email and the other issues at hand.

“They completely blundered and now all they’re trying to do is damage control,” Briggs said. “He doesn’t want to go down in history as one of the few district attorneys in California who have ever been disqualified from a case.”

When it comes to the PRotect Paso Facebook group post, Briggs said the fact that Dow chose to engage with the group shows a political bias.

“Dan Dow is a member of a Facebook group which contains a lot of dangerous, far-right, inflammatory rhetoric, and Dan Dow chose to engage with that group and make excuses and try to placate them or calm them down,” Briggs said. “That in itself is bizarre. He’s spending his time engaging with far-right extreme people.”

Briggs said Dow did not make public posts or statements to any other people, including Republicans, Democrats or moderate religious people. Dow’s office likewise noted in its petition that the PRotect Paso post was the only public comment Dow made regarding the charges against Arata.

The fact that Dow has not addressed the fact that his wife’s email “tried to raise money off the prosecution of Black Lives Matter protesters” is the smoking gun itself, Briggs said.

Dow has held that the email cannot be linked to Black Lives Matter or the protest arrests because it does not mention those by name — but rather says Dow is “leading the fight against the wacky defund police movement” and made “passing references to crazy protest activity.”

“He misses the point, and that’s what these judges are concerned about. They’re not concerned about whether a whole conversation got in the record or exactly what date some things are,” Briggs said. “Dan Dow was using the ethics of a pimp. He was trying to raise money — and he doesn’t even have a real opponent — and he was trying to raise money off of his prosecution of Black Lives Matter protesters. That’s an illness. That’s a bureaucratic political illness.”

Briggs said Dow turned the Black Lives Matter protesters into his “political pawns,” saying Dow took away the protesters’ liberty and raised money off of them. He said many people would consider the actions by Dow “more egregious” than unlawfully beating someone up because of the distrust it creates between the public and those who are tasked to protect them.

“It devastates the community in a psychological sense when a prosecutor can use their power to abuse people’s freedom publicly,” Briggs said. “That has consequences, not just for the individual, but the entire society.”

The only way for the San Luis Obispo community to heal is for the case to be out of Dow’s hands and into the hands of jurors, so that the community can take ownership over what happened, Briggs said.

“Until then, Dan Dow and the Attorney General’s Office are just making it worse by spending more and more taxpayer dollars to delay the inevitable trial that we will get,” Briggs said.

Opinion will deter political prosecutions, criminal justice group says

This month, the California Attorneys for Criminal Justice, a group of criminal defense lawyers, filed a request for the court to publish the opinion in the official record, meaning the decision would be citable in case law.

That would help deter prosecutors and law enforcement from misusing the powers of their offices to pursue politically motivated prosecutions, the group said.

The opinion is currently unpublished, which means it cannot be cited or relied upon in future similar cases. Most appellate court decisions are unpublished unless they establish a new rule of law, modify or advance interpretation of the rule of law, or involve a legal issue of continuing public interest, according to California Rules of Court.

The group argues the California attorney general’s support of the San Luis Obispo County District Attorney’s Office in this case “has made clear that this is an issue that is likely to reoccur.”

It said the murder of George Floyd in May 2020 sparked an ongoing nationwide debate into race and serious government misconduct. Because of this, the potential political pressure that informs prosecutors who decide whether and how to prosecute Black Lives Matter protesters is of “great public interest.”

Local prosecutors offices have become “hotly contested,” with national groups donating hundreds of thousands of dollars to their preferred candidates, the groups said.

“The opinion in this case sets a clear baseline for prosecutors and courts to reference when considering whether recusal is necessary in politically charged prosecutions,” the request said, adding that the opinion also gives guidance to trial courts on what kind of evidence is relevant and admissible to determine whether an office has a conflict of interest.

It is unclear whether the California Court of Appeal will rehear the case or publish its decision in the official record.