This country now has a corrupt, dishonest, and unethical businessman serving his first term as the nation’s chief law enforcement officer—President Donald J. Trump.
As a matter of disclaimer, let us say at the outset, we strongly believe the current President is inept, corrupt and unhinged and we will support his opponent, whoever that may be. And let us follow up this disclaimer with the acknowledgement that we believe that prosecutorial misconduct is a major contributor to the broken criminal justice system(e.g., here, here, and here).
We believe that prosecutorial misconduct is one of the most serious problems facing the nation’s criminal justice system. It is a piece, along with police misconduct, systemic racism and economic disparity that has corrupted the criminal justice system to its core.
Kamala Harris’ History of Defending Official Misconduct
First term U.S. Senator Kamala Harris is currently vying with 22 other Democratic candidates to be the next President of the United States. She has defined herself as a criminal justice reform advocate.
The documented and unblemished truth is that during her two 3-year terms as the District Attorney for the City of San Francisco and during her five years as the Attorney General for the State of California, Sen. Harris defended misconduct by prosecutors and law enforcement officials. The Senator even supported and defended a rogue Kern County, California prosecutor named Robert Murray who, according to a California appeals court, engaged in “outrageous government misconduct.”
Murray falsified two lines in the transcript of a child sex offender’s confession as “evidence” that the defendant had confessed to a crime more serious than the one he had been charged with.
Writing in the March 4, 2015 Observer, Sidney Powell wrote that:
“With the two sentences that state’s attorney Murray perjuriously added, Murray was able to threaten charges that carried a term of life in prison … Capitalizing to the maximum on his outright fabrication, state’s attorney Robert Murray committed his own crime against the defendant at the crucial time when defense counsel was consulting with the defendant on a possible plea.”
When the trial court threw out the indictment against the defendant, then Attorney General Harris appealed the decision to an appeals court arguing, as Powell reported, that “only abject physical brutality would warrant a finding of prosecutorial misconduct and the dismissal of an indictment.”
In other words, under Harris’s standard, prosecutorial misconduct can occur only if there is prosecutorial physical brutality.
Harris’ Prosecutorial Background Shunned Criminal Justice Reforms
Lara Bazelon is Professor of Law and Director of the Criminal Juvenile Justice Clinic and the Racial Justice Clinic at the University of San Francisco School of Law. She is also the former director of the Loyola Law School Project for the Innocent. She has conducted an enormous amount of research into Harris’s prosecutorial background as district attorney and attorney general. A January 18, 2019 CNN report quoted these comments from Bazelon about Harris’s background as a prosecutor:
“Time after time, when progressives urged her to embrace criminal justice reforms as district attorney and then the state’s attorney general, Ms. Harris opposed them or stayed silent. Most troubling, Ms. Harris fought tooth and nail to uphold wrongful convictions that had been secured through official misconduct that included evidence tampering, false testimony and the suppression of crucial information by prosecutors.”
Bazelon wrote an Op-Ed piece published in the January 17, 2019 edition of The New York Times, in which she described Ms. Harris’ public service history as one not worthy of the description of “progressive prosecutor.”
Harris Fought to Prevent Claims of Possible Innocence
Five days after that Op-Ed piece Katherine Timpf, writing in the January 22, 2019 edition of the National Review, referred to Bazelon’s piece with these observations:
“Bazelon also did a fairly nice roundup of all of the times that Harris was found arguing in favor of convictions that any reasonable person might be concerned had been wrongfully wrought. For example: the case of George Gage, who was convicted of sexually abusing his stepdaughter based almost entirely on the stepdaughter’s own testimony. Later, the judge found ‘that the prosecutor had unlawfully held back potentially exculpatory evidence, including medical reports indicating that the stepdaughter’ had repeatedly lied to law enforcement. When the case reached the United States Court of Appeals for the Ninth Circuit in San Francisco in 2015, Harris’s prosecutors still continued to support the conviction. Harris’s team won; Gage is still in prison.
“Harris also pushed to uphold a 28-year-to-life sentence for a man named Daniel Larsen for possession of a concealed weapon, despite the fact that, as Bazelon writes, ‘here was compelling evidence of his innocence’ and ‘his trial lawyer was incompetent.’ (Thankfully, she lost this one.) There was also the case of Johnny Baca, who had been convicted of murder ‘even though judges found a prosecutor presented false testimony at the trial.’ Despite the clear issues with his conviction, Harris still supported it initially, reversing her course only after the injustice had gained national attention. Something similar happened with Kevin Cooper, an inmate on death row whose trial had been influenced, Bazelon writes, ‘by racism and corruption.’ She initially opposed his bid to prove his innocence through DNA testing, relenting only after his case too went viral. (Thankfully, outgoing Gov. Jerry Brown approved the bid for this testing in December of last year.)
This is not Progressive; this is Draconian
“As a prosecutor, Harris had the power to stand on the side of justice for the accused — and she repeatedly declined to take that stance. Instead, she routinely relied on things like legal technicalities in an attempt to uphold convictions that most people would be concerned had been handed out wrongfully. This is not progressive; this is draconian. In fact, it seems that sometimes, the only thing that could get her to take the sides of the accused — no matter how much the actual evidence may have pointed to their innocence — was when pressure from the public threatened to damage her reputation if she didn’t.”
Prosecutorial Misconduct in DA Harris’ Office
Harris’s involvement in prosecutorial misconduct goes as far back as 2010.
Writing in a May 21, 2010 edition of the SF Gate, Jaxon Van Derbeken wrote that:
“San Francisco District Attorney Kamala Harris’ office violated defendants’ rights by hiding damaging information about a police drug lab technician and was indifferent to demands that it account for its failings, a judge declared…
“Superior Court Judge Anne-Christine Massullo stopped short of granting a request by more than 40 drug defendants that their cases be dismissed because of prosecutorial misconduct, saying that decision must be left up to the judges hearing their cases.
“But in a scathing ruling, the judge concluded that prosecutors had failed to fulfill their constitutional duty to tell defense attorneys about problems surrounding Deborah Madden, the now-retired technician at the heart of the cocaine-skimming scandal that led police to shut down the drug analysis section of their crime lab.”
A San Francisco Public Defender named Joseph Adachi told the SF Gate that Judge Massullo’s ruling “really hits the ball out of the park by setting forth multiple failures by the district attorney to disclose evidence.”
Criminal Justice Reform Advocate?
Today, as a candidate for the presidency of the United States, Sen. Harris portrays herself as a “criminal justice reform” advocate. The problem is that the Senator, and the people on her staff when she was district attorney and attorney general, repeatedly undermined the integrity of the criminal justice system by suppressing exculpatory evidence to convict innocent people, worked vigorously to keep innocent people locked up through assertions of technicalities, and supported prosecutors who engaged in the most “outrageous government misconduct.”
In a May 15, 2019 piece in Mother Jones, Samantha Michaels put Sen. Harris’s criminal justice reform advocate claim in proper perspective this way:
“ … as California’s attorney general, Harris argued the state had a right to impose the death penalty after a federal judge ruled it was unconstitutional, though she says she’s personally against capital punishment. She also declined to support a bill that would have required her office to investigate fatal police-involved shootings, and she fought to keep wrongfully convicted men in prison, despite evidence of prosecutorial misconduct in some of their cases. And until 2018, she said she was against the legalization of recreational marijuana, even though its criminalization has led to the disproportionate arrest and incarceration of people of color.”
President Donald Trump has stripped the American presidency of any semblance of honesty, integrity, and respect for the rule of law.
While Sen. Harris has endorsed some criminal justice reforms during her public life, these efforts do not wipe her slate clean as a prosecutor who oversaw a pattern of unethical, even illegal, prosecutorial misconduct in her office.
The American presidency deserves better.
Ms. Harris has a long way to go in explaining her history as a tough on crime prosecutor. Until Ms. Harris takes an intellectually honest assessment of her own historical flaws as a prosecutor, provides a compelling rationale for her change in philosophy and offers a vision for her new path as criminal justice reformer, we cannot support her quest for chief law enforcement officer of the land. We hope she will take this opportunity to do so and embrace the future of criminal justice reform.