Lawyer Fired Over ‘3 Strikes’ Switches Sides

Soft-spoken criminal attorney David Bristow, working on mundane cases in nondescript suburban courtrooms, never expected to make a name for himself this early in his career.

But that changed when the young rising star in the San Bernardino County district attorney’s office was fired for refusing to prosecute a “three strikes” case.

If he’s not the first rank-and-file prosecutor in California to rebuff orders and refuse to try a “three strikes” case, he’s at least the first one known to lose his job over it, said a spokesman for the California District Attorney’s Assn.

Now, Bristow is working for the other side--the public defender’s office--and he is representing the same kinds of people he had been trying to put behind bars.

The case that caused Bristow to draw a line in the sand involved a Pomona man’s alleged possession of 0.23 gram of cocaine, stashed in the ashtray of a borrowed car. It was classified a nonviolent felony but still serious enough, based on the voter-approved 1994 law, to send the person to prison for 25 years to life, if convicted, because he previously had been convicted of robbery and burglary.

This would have been the first felony case tried by Bristow, who began working for the San Bernardino district attorney’s office 2 1/2 years earlier. He had become smitten with trial work, especially the rush of presenting arguments to jurors, and because of that skill he was advancing swiftly up the ranks of new attorneys in the office. He already had sent thieves and bullies, drunks and druggies to jail.

But he couldn’t bring himself to prosecute this case, especially after seeing the defendant’s family in the courtroom. “Possession of that amount of cocaine was not worth that kind of sentence,” Bristow said. “It struck me as grotesque.”

He shared his misgivings about the case--and the “three strikes” law in general--with his immediate boss and figured that the case would be reassigned to an attorney who could prosecute it with conviction.

But, like a rebellious student being sent to the principal’s office, Bristow was ordered to meet with Dist. Atty. Dennis Stout. “He was very nice, very polite, and he said he liked me,” Bristow said. “But he said [three strikes] was the law and that we needed to enforce it. And he was right.”

Still, Bristow said he wouldn’t budge. He accepted Stout’s offer to stay on the staff for 90 days until he could find a job elsewhere. Within days, he moved down one floor in the Rancho Cucamonga Courthouse to the public defender’s office.

Although he is teased for still wearing the same prosecutor’s uniform--white shirts and navy blue power suits--Bristow said he was able to make the move this month without any qualms.

“We’re all dealing with the same law, except that we’re looking for different nuances,” he said. “And now my client is someone very tangible, versus the amorphous ‘People of California.’

“As a prosecutor, you look at a police report and make sure you can prove all the elements of a crime beyond a reasonable doubt. As a public defender, you look for the one element of a crime that the district attorney’s office can’t prove.

“In either case, your job is to be the most vigorous advocate possible for your client, within the law. The person you’re defending may be a scumbag, but that doesn’t factor into the equation.”

Bristow’s position on the “three strikes” law has now garnered him a Conscience Award from the American Civil Liberties Union of Southern California. He will be honored at a Biltmore hotel luncheon today, alongside some of Southern California’s most seasoned and dedicated attorneys.

The ACLU learned of Bristow’s stand against “three strikes” after it already named honorees for its second-annual awards luncheon and came up with a new award--its Conscience Award--to give Bristow.

“We will now give it from time to time when we find someone, like Dave, who is special because of his courage and conviction,” said ACLU spokeswoman Gina Lobaco.

“It’s a real rarity for someone to feel so morally and philosophically opposed to an issue that he’s willing to lose his job over it.”

Bristow feels humbled by the honor. “I’ve always been a flaming-liberal kind of guy,” he said. “But I don’t feel I’ve done anything to deserve this much attention.

“There are people in the district attorney’s and public defender’s offices who work their butts off, and they don’t get awards, and there are cops who get shot at, and nobody gives them awards for doing what they believe in,” he said.

“And all I did was get fired,” Bristow said.

Stout said he had little choice but to tell Bristow that his attitude toward the “three strikes” law was unacceptable, even though he said he admires Bristow for his conviction and described him as “a bright and shining star in our office.”

“Deputy district attorneys act on my behalf--and I’m the elected official who represents the public,” he said. “I expect them to represent my philosophies and policies, and the ‘three strikes’ law is a powerful tool to deal with habitual criminals.”

According to some senior prosecutors, Stout’s decision to boot Bristow created consternation among his staff of 140 trial lawyers, and some argued with Stout to be more flexible in assigning Bristow cases so a good attorney would not be lost.

“I think David was surprised--and certainly we were, too--that his discomfort over that case resulted in [his] being given a choice of either prosecuting it or leaving the office,” said Deputy Dist. Atty. Mike McDowell, who supervised Bristow--and who ran against Stout for the district attorney’s post two years ago.

Typically, if a deputy is uncomfortable with a particular case, it is reassigned, McDowell and others said.

Stout said he agreed that attorneys could be accommodated on an occasional basis, but that Bristow’s philosophical position would affect too much of his workload.

“We’re talking about a whole class of cases, generically, being rejected by this attorney,” Stout said. More than half of the cases prosecuted by his office, Stout said, are “three strikes” cases--and about 60% are triggered by a nonviolent felony as the third offense.

The public defender’s office, meanwhile, delights in counting Bristow as one of its own. “The D.A.’s office lost an excellent attorney, and it was fortuitous that we had an opening,” said Renae Carpenter, a supervising public defender who also has worked as a deputy district attorney.

She worries that Bristow may have difficulty adjusting to his new clients--many of whom may be cynical, uncooperative or guilty-- and advises him to keep his focus on a higher plane: upholding the Constitution.

Bristow says that won’t be a problem.

“I know the public views the D.A. as wearing the white hat and the P.D. [public defender] as wearing the black hat, but there shouldn’t be a distinction between the two,” he said.

“We’re both serving the public, and as long as you sign on to the position that you’re innocent until proven guilty, you have to have public defenders.

“Besides,” he said, “the ‘public defender’ is a much cooler name.”

Stout said he wishes Bristow well. “He’ll fight us squarely on the high ground,” he said.