Lawyer alleges political bias in asking judge to throw District Attorney Stephan off antifa prosecution
When the District attorney’s Office moved to prosecute 11 self-described anti-fascists in connection with violence at a 2021 pro-Trump march in Pacific Beach, prosecutors used a novel tactic — they charged the defendants with conspiracy on the basis of being alleged “antifa supporters.”
Now, just months before several of those defendants are set to go to trial, a defense attorney is accusing San Diego County District attorney Summer Stephan and her office of being politically biased against anti-fascists. The defense attorney argues that Stephan’s office cannot fairly prosecute his client in part because of Stephan’s past campaign materials vilifying antifa and therefore should be disqualified from the case. Prosecutors strongly contend there is no conflict of interest.
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A hearing on the disqualification motion is set for Friday morning in San Diego Superior Court. If successful, California attorney General Rob Bonta’s Office would take over the prosecution.
The case stems from a “Patriot March” held Jan. 9, 2021, just three days after supporters of then-President Donald Trump had stormed the U.S. Capitol. Pro-Trump attendees of the Pacific Beach rally, including several people who’d been at the Capitol just days earlier, clashed with black-clad counterprotesters on the streets near Crystal Pier. Later that year, the District attorney’s Office asserted that “video evidence analysis shows that overwhelmingly the violence in this incident was perpetrated by the Antifa affiliates and was not a mutual fray.”
Experts who study domestic extremism said the criminal case marked the first time ever that prosecutors had used a conspiracy charge specifically to prosecute alleged members of antifa, which is generally considered a decentralized movement of street activists often made up of socialists, anarchists and other left-wing ideologues.
Prosecutorial disqualification motions are difficult to win, but Curtis Briggs, the San Francisco-based defense attorney who filed the motion, has had recent success in a similar case. Last year, he was among the defense lawyers who successfully disqualified San Luis Obispo County’s district attorney from prosecuting Black Lives Matter demonstrators, convincing both a trial judge and appellate court that the district attorney was politically biased against the group.
Briggs, who is representing defendant Jeremy Jonathan White in the Pacific Beach case, believes he has the evidence to prove the bias allegations against Stephan, starting with her controversial 2018 campaign website. It featured a menacing image of antifa marchers behind a superimposed photo of George Soros, the billionaire liberal activist who is often vilified in conservative circles and had donated money to a super PAC supporting Stephan’s opponent. Briggs also argues that Stephan’s office has demonstrated a years-long pattern of failing or refusing to prosecute violent acts committed at political rallies by members of documented right-wing hate groups, including some who are among the alleged victims in the Pacific Beach prosecution.
San Diego police officers clash with anti-fascist counterprotesters at the Pacific Beach march.
(Nelvin C. Cepeda/The San Diego Union-Tribune)
Pro-Trump supporters stand along Mission Boulevard in the early evening hours during the “Patriot March” event.
(Nelvin C. Cepeda/The San Diego Union-Tribune)
“(Stephan) prosecutes anti-fascists vigorously, while systematically ignoring vicious acts by known right-wing extremists who perpetrate violence at protests,” the disqualification motion argues. “Stephan has misled the public about the events giving rise to the prosecution of Mr. White and inexcusably deceived the Grand Jury by concealing the ‘victims’ associations with the American Guard, Proud Boys, and Defend East County — sworn enemies of antifa. No defendant in this case can be dealt with fairly by Stephan.”
Stephan’s office responded Thursday with its own motion vehemently denying the existence of a political bias. The response alleged the defense motion “is riddled with fantasies and falsehoods, and presents a disjointed litany of perceived grievances not amounting to ‘conflicts of interest’ within the meaning of the law.” The office also highlighted several hate-crime convictions it has won during Stephan’s tenure and similar prosecutions it is carrying out now.
The decision whether to disqualify Stephan’s office from prosecuting the case will fall to Judge Daniel Goldstein, who in September denied a motion to dismiss the case filed by defense attorneys challenging several different aspects of the prosecution.
The motion to disqualify
Based on the way that trial judges and appellate courts have interpreted the California statute, defense attorneys must convince a judge of two things in order to disqualify a district attorney: first, that a conflict of interest exists; and second, that the conflict is so severe that the defendant cannot receive a fair trial.
According to previous decisions, a conflict exists “whenever the circumstances of a case evidence a reasonable possibility that the DA’s office may not exercise its discretionary function in an evenhanded manner.”
Courts have previously held that district attorneys do not cede their freedom of speech rights when they take public office. Courts have also held that a prosecutor feeling unusually strongly about a particular prosecution does not necessarily indicate a conflict of interest, nor does a prosecutor hesitating to commit to a prosecution for personal or political reasons.
But, according to the courts, in exercising his or her constitutionally protected free-speech rights, a prosecutor cannot deprive a defendant of his or her constitutionally protected right to a fair trial.
The motion to disqualify the San Diego County District attorney’s Office argues Stephan has crossed that line, alleging she’s “been unable to separate her political platform against antifa from her ethical duty to enforce the law evenhandedly.”
This, the motion argues, “has resulted in false allegations against Mr. White while (Stephan) has formed a prosecutorial shield around a core group of right-wing hate groups that have been responsible for a string of brutal publicized attacks at San Diego protests, including the one for which Mr. White is falsely accused.”
To argue this point, the defense motion points to Stefan’s “Threat to San Diego” website from her 2018 campaign that featured the image of Soros over black-clad protesters. The site, which is now defunct, drew criticism at the time, as did Stephan’s tweet with a link to the site and the same image of Soros, a Hungarian-American Jew and Holocaust survivor.
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A screenshot of threattosandiego.com, a 2018 campaign website of District attorney Summer Stephan, shows billionaire liberal activist George Soros superimposed over images of black-clad antifa protesters. Soros had donated money to a super PAC supporting Stephan’s opponent.
(San Diego Superior Court filing)
“Claims that George Soros funds antifa or is otherwise involved in fomenting civil unrest related to Black Lives Matter protests are false and touch on longstanding, sometimes antisemitic conspiracy theories,” according to the Anti-Defamation League.
The defense motion alleges that “Stephan’s use of such propaganda conveyed two important messages” — that voters could expect her to treat antifa as the enemy, and that she shared a similar ideology to right-wing extremists whose own ideologies “are largely based on the same conspiracy theories but with an antisemitic slant.”
In that same vein, the defense motion alleges that right-wing extremists helped fund Stephan’s 2018 campaign, providing documentation purporting to show Stephan received a $100 campaign contribution from the alleged president of the Southern California chapter of the American Guard, a group the Anti-Defamation League describes as “hardcore white supremacists.”
And the motion claims that despite violence on both sides of the Pacific Beach protest, investigators and prosecutors targeted only the left-wing counterprotesters. The motion alleges that decision is part of a pattern dating back years in which prosecutors have declined to charge right-wing demonstrators who engage in violence at public protests, even when those demonstrators are members of documented hate groups. The motion asserts that some of the alleged victims in the antifa prosecution are themselves members of the American Guard and other hate groups.
The motion highlights previous, unprosecuted attacks allegedly carried out by the Pacific Beach victims and their associates, all of them captured in news footage, that occurred in December 2017, June 2019, September 2020 and July 2021.
The DA’s response
The 23-page response from Stephan’s office, filed by Deputy District attorney Martin Doyle, does not directly respond to the allegations about Stephan’s campaign website, but does address the 2018 campaign and donations that Stephan received.
“No California case has ever found a general campaign contribution to a district attorney election constitutes a recusable conflict,” Doyle argued.
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San Diego County District attorney Summer Stephan speaks in National City in 2021.
(Teri Figueroa/The San Diego Union-Tribune)
The District attorney’s Office also included a 49-page appendix highlighting a series of hate-crime convictions and prosecutions during Stephan’s tenure. Those include the hate-crime murder conviction of John T. Earnest, the Chabad of Poway shooter; the hate-crime convictions of two men who assaulted Black Lives Matter protesters and a journalist in Imperial Beach; and the recent indictment of 17 alleged Hells Angels bikers on charges of attacking three Black men in Ocean Beach.
“A majority of hate crimes prosecutions by the San Diego County District attorney’s Office are brought against white defendants with hate bias against people of color,” spokesperson Steve Walker told the Union-Tribune.
More generally, Doyle’s response argues that the defense motion failed to establish a conflict of interest at all, much less one that’s so severe that White cannot receive a fair trial.
“Recusing the District attorney is a serious interference by the judiciary upon the powers of the executive branch and is permitted only in very limited circumstances, governed by statute,” Doyle argued. “It is not permitted based on subjective ‘appearances’ or ‘perceptions’ of impropriety.”
The San Luis Obispo case
Briggs believes his motion to disqualify Stephan and her office is strong in large part because of the similarities he sees between the Pacific Beach case and one that he defended in San Luis Obispo County. In that case, involving Black Lives Matter protesters charged in connection with a July 2020 demonstration that shut down a highway, Briggs and attorneys representing seven defendants were able to successfully disqualify District attorney Dan Dow.
The trial judge ruled that Dow was unable to fairly prosecute the defendants because of his “well-publicized association with critics of the Black Lives Matter movement.” California’s 2nd District Court of Appeal upheld that ruling.
The trial judge based the decision on a number of public statements, social media posts and campaign communications from Dow in the hours, days and months after his office filed charges.
That could be what separates the two cases. Aside from two press releases from Stephan’s office — one announcing the arrests of the defendants in December 2021 and one announcing a grand jury indictment in June 2022 — Stephan does not appear to have publicly commented on the Pacific Beach case. Her office argues that any comments she or her campaign may have made during her 2018 race are irrelevant to the charges filed in 2021.
“Unlike the (San Luis Obispo) defendants — where the (district attorney’s) offending statements and the prosecutorial decisions were made on the same day — it is completely impossible to find that any comments the San Diego County District attorney made in 2018 were tied to ‘contemporaneous prosecutorial decisions’ occurring in 2021 and beyond,” the deputy prosecutor argued in his response.
Briggs acknowledged Thursday that the timing “could make a difference depending on how the judge wants to approach the analysis,” but argued that Stephan’s 2018 campaign rhetoric “set in motion an office-wide political platform” that she and her prosecutors adhere to still.
The District attorney’s Office has asked Goldstein to dismiss the motion without a hearing.
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