- Lara Bazelonprofessor at the University of San Francisco School of Law.
As Senator Kamala Harris rises in the early presidential polls, she is facing increasing scrutiny over her record as a prosecutor in California. In 2004, Harris became district attorney of San Francisco. She held the post until 2011, when she became the attorney general of California. We speak with Lara Bazelon, a professor at the University of San Francisco School of Law. In January, she wrote a piece in The New York Times titled “Kamala Harris Was Not a 'Progressive Prosecutor.'” In it, Bazelon writes, “Time after time, when progressives urged her to embrace criminal justice reforms as a 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.”
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González.
JUAN GONZÁLEZ: Well, as Senator Kamala Harris rises in the early presidential polls, she’s facing increased scrutiny over her record as a prosecutor in California. In 2004, Harris became district attorney of San Francisco. She held the post until 2011, whereupon she became the attorney general of California.
We’re joined now by Lara Bazelon, a professor at the University of San Francisco School of Law. In January, she wrote a widely read article in The New York Times titled “Kamala Harris Was Not a 'Progressive Prosecutor.'” Bazelon wrote, quote, “Time after time, when progressives urged her to embrace criminal justice reforms as a 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.”
AMY GOODMAN: Lara Bazelon joins us now from San Francisco.
Thank you for joining us, Professor Bazelon. Can you start off by going through Senator Harris’s record, starting with her being DA of San Francisco?
LARA BAZELON: Sure. So, she was elected in 2004. And she took a pretty courageous stance, initially, in that she didn’t seek the death penalty against a man who had been accused of murdering a police officer. And she did get a lot of blowback from that. Subsequently, she moved much more towards the center in many of her positions.
And two things happened in her tenure as DA that I think are worth mentioning. One is that there was a big crime lab scandal, whereby there was a lab technician who was using the drugs rather than testing them. And as a result, many, many convictions became tainted. And it turned out that her office had known for months—top attorneys had—and had not disclosed that information to the defense. And when a judge found out, she became quite incensed and wrote an opinion castigating Harris for allowing this to happen. Harris’s reaction to that was to try to get the judge disqualified by saying that she had a conflict of interest because her husband was a defense lawyer. That failed, and 600 cases were thrown out.
The second piece of her tenure that I think is important, that not a lot of people know about, is a case involving a man named Jamal Trulove. That case was tried by Linda Allen, who was one of Harris’s deputies. And the case against Trulove turned against a single eyewitness—turned on one eyewitness. It was a one-eyewitness-identification case. He was convicted and sentenced to 50 years to life. And the court of appeals threw out that conviction, castigating what Allen had done as gross and egregious prosecutorial misconduct. They said that her closing argument was a yarn made out of whole cloth. Recently, Trulove sued the city of California—excuse me, the city of San Francisco and won a $13.1 million judgment.
JUAN GONZÁLEZ: Now, you’ve also written about another case, George Gage. Could you talk about that, as well?
LARA BAZELON: Yes. And this is what prompted me really to write this piece. It’s Harris’s record on wrongful convictions. So, after Trulove, there was Gage, and there was Johnny Baca and Daniel Larsen and a man named José Luis Díaz. And in these cases, what happened was that Harris was at that point the AG, the top official in the state of California, the top prosecutor. And when these convictions came up, they had been handled by lower DAs, and it was her job to decide whether or not to defend them.
In George Gage’s case, he had been convicted, again, based on a single witness. It was his stepdaughter Marian, who accused him of sexually abusing her. And the case turned on Marian’s testimony. It turned out, after the verdict, that the prosecutor had suppressed a lot of material about Marian, including medical records and a note from her own mother saying, “My daughter is a pathological liar who lives her lies.” And rather than acknowledge that this really terrible thing had happened, that this prosecutor had held back information that might have swayed the verdict, what Harris’s attorneys went into court and did was say, “Look, George Gage,” who been forced to act as his own lawyer, “didn’t raise his claim in exactly the right way. And so, for this technical reason, you should affirm the conviction.” It went to oral argument, and the judges were very concerned about that position, told the deputy to go back and talk to a supervisor as to try to resolve the case, which was a signal to really get rid of it and do the right thing. And instead, Harris’s office doubled down. And George Gage is currently 80 years old. He is serving an effective death-in-prison sentence.
AMY GOODMAN: I want to go to an interview Kamala Harris did last month on Face the Nation with correspondent Ed O’Keefe.
ED O’KEEFE: You take your prosecutorial record against a push in your party for criminal justice reform. There’s a lot of concern among especially more liberal and younger parts of the party. You may not be the best person to do that, given that you were implementing those tough-on-crime initiatives as a prosecutor. Can they trust you to do that?
SEN. KAMALA HARRIS: Well, here’s the thing. When I became a prosecutor and when I was elected district attorney and also attorney general of California, I implemented some of the most significant reforms to date during those years that had been implemented. Like I said, I created one of the first re-entry initiatives, that became a model—it was designated as a model in the United States for what law enforcement should do to be, as I call it, smart on crime. I was the first in the nation, leading the state Department of Justice in California—which, by the way, is the second-largest Department of Justice in the United States—to require my agents to wear body cameras. I created, as attorney general, the first-in-the-nation implicit bias and procedural justice training for law enforcement, knowing that that had to be addressed, which is the implicit bias that exists in law enforcement and the potentially lethal outcomes that occur from that.
ED O’KEEFE: So the concerns are overblown?
SEN. KAMALA HARRIS: The concerns are overblown, yes. No question.
AMY GOODMAN: So, that is Senator Kamala Harris on Face the Nation, speaking to correspondent Ed O’Keefe. If you could respond to this, Lara Bazelon?
LARA BAZELON: Sure. So, you can hear her struggling to come up with a list. And she starts with her Back on Track program that she implemented as DA. This was a program that did help certain very select nonviolent offenders re-enter society. It affected a very small group of people.
She then talks about body-worn cameras. She was asked by the California state Legislature to support a bill to mandate all police officers wearing body-worn cameras, and she declined to do that.
With respect to implicit bias training, that is important. What’s also important, and I would say more important, is investigating officer-involved shootings. She was called upon by the Legislature to do that, and once again she declined.
And then, when you go down the list of the issues that we think about when we think about a progressive prosecutor, on every single one of those issues she was on the wrong side. And in some cases, her opponents ran to her left. So, for example, with marijuana legalization, in her run for re-election as attorney general, her opponent ran to legalize, she was against it. She’s since changed her position, now that the vast majority of the Democratic Party has moved in that direction. There are other examples, as well: her failure to support legislation that would reduce certain felonies to misdemeanors, going after parents criminally for having truant children. So, there’s a lengthy list of policy positions where there was the progressive path and there was the center-right path, and she did not take the progressive path.
JUAN GONZÁLEZ: I wanted to ask you specifically about this whole issue of parents with truant children and her policy of trying to prosecute them. I want to go to Kamala Harris’s 2011 inaugural speech as California attorney general, as she touted her truancy policy during her tenure as district attorney of San Francisco. This is what she said.
ATTORNEY GENERAL KAMALA HARRIS: We know chronic truancy leads to dropping out, which dramatically increases the odds that a young person will either become a perpetrator or a victim of crime. Folks, it’s time to get serious about the problem of chronic truancy in California. … Last year alone, we had 600,000 truant students in our elementary schools, which roughly matches the number of inmates in our state prison system. And is it a coincidence? Of course not. And as unacceptable as this problem is, I know we can fix it. In San Francisco, we threatened the parents of truants with prosecution, and truancy dropped 32%. So we are putting parents on notice: If you fail to take responsibility for your kids, we are going to make sure that you face the full force and consequences of the law.
JUAN GONZÁLEZ: So, that was Kamala Harris in 2011. What exactly did she do as DA in prosecuting parents?
LARA BAZELON: So, what ended up happening was that—and this actually took effect after she left and become attorney general—prosecutors then had the power, under this law, to prosecute parents for a misdemeanor for being essentially responsible for their children missing numerous days of school, the idea being that they would be scared into making sure that their kids actually did attend school. And some parents were in fact prosecuted.
And the pushback about this, I think, was on two fronts. One, it disproportionately impacted communities of color and parents of color, who were basically more often targeted by this law than people who were white. And, two, this idea that removing a parent from the home or subjecting them to criminal prosecution would be a tool to really sort of reknit a family, which I think is very questionable. There a lot of things going on when there are truant children, including poverty, drug use, different issues with kids. And it’s just not clear to many people who work in the juvenile space that the right answer to that is to criminalize the parents’ conduct.
AMY GOODMAN: And has she responded since—I mean, that was a clip in 2011—now that she is running for president and her record as being questioned on a number of these issues?
LARA BAZELON: Well, I mean, that, to me, has been what’s been frustrating, is that I don’t find her responses to be responsive to the questions that she’s being asked, and I don’t feel oftentimes that she’s being asked the hard questions. So, the Face the Nation clip is kind of the perfect example, where she’s thrown what I think is sort of a softball and then responds by ticking off a couple of accomplishments, that, when you look at them in the bigger context, actually aren’t that progressive.
And so, part of it is that she hasn’t been pushed directly to answer for truancy, for George Gage, for Jamal Trulove, for marijuana, for opposing testing in Kevin Cooper’s case. I mean, she’s not getting those questions, I think, directly and forcefully enough. But then also, disappointingly, I think she hasn’t reckoned with it and said, “Look, I am responsible for those decisions.” She has said, more broadly, “The buck stops with me. I was the head of my office.” But she needs to take that next step and acknowledge these specific things that she did, and reckon with that record.
AMY GOODMAN: I want to go to Senator Kamala Harris speaking to reporters in January as she announced her candidacy for president. Senator Harris was asked about her role in defending the California Department of Corrections’ efforts to prevent transgender prisoners from getting gender reassignment surgery.
SEN. KAMALA HARRIS: I was, as you are rightly pointing out, the attorney general of California for two terms. And I had a host of clients that I was obligated to defend and represent, and I couldn’t fire my clients. And there were, unfortunately, situations that occurred where my clients took positions that were contrary to my beliefs. And there—it was an office of a lot of people, who would do the work on a daily basis. And do I wish that sometimes they would have personally consulted me before they wrote the things that they wrote? Yes, I do. But the bottom line is, the buck stops with me, and I take full responsibility for what my office did. But on that issue, I will tell you, I vehemently disagree and, in fact, worked behind the scenes to ensure that the Department of Corrections would allow transitioning inmates to receive the medical attention that they required, they needed and deserved.
AMY GOODMAN: So, that was Senator Harris when she was announcing for president. She was speaking at Howard University. Professor Lara Bazelon, your response?
LARA BAZELON: Well, I think what is important to do is to back up and talk about what the job of a prosecutor is. So, many people think that it is about convicting people. And it is not. It’s actually about doing justice. And that means that if you see something that is wrong, not just against your core principles but violates, for example, the Equal Protection Clause or the Due Process Clause, you are required, as the top prosecutor in your state, to stand up and say, “I won’t enforce this law.” And, in fact, that’s what she did in Proposition 8. So, to say, “I had these clients, and I had no choice but to take these positions,” is not correct.
So, I’ll give you this example. Proposition 8 was passed by California voters, banning same-sex marriage. When she was basically told that she needed to defend this law, she refused to defend it because it violates the equal protection law, in her opinion and actually as the Supreme Court later decided. So she had that option when it came to this transgender surgery. She had that option when it came to the death penalty, when that came up, and a judge found that it was unconstitutional. She defended it. And her response has always been, “Well, these are my clients.” But, in fact, no, your job is to uphold the Constitution. And if you think these laws violate the Constitution, then you should not defend them.
JUAN GONZÁLEZ: I wanted to ask you—in your op-ed piece, you say that the term “progressive prosecutor” has become a trendy subject these days. What do you see as what marks—would be some of the hallmarks of a truly progressive prosecutor in America in 2019?
LARA BAZELON: So, you’re right. It has become this real buzzword. And we just saw last week, with this insurgent campaign of Tiffany Cabán in Queens—this is someone who’s 31, a queer Latina, a life-long public defender, never prosecuted a case. And she ran on a platform of dismantling our system of mass incarceration, decriminalizing certain crimes, not prosecuting certain crimes, ending cash money bill, which is essentially a criminalization of poverty because it says to people whether you can get out or not doesn’t really depend on anything other than your ability to pay, which means a wealthy person can be free and a poor person has to stay and languish in jail while their case goes forward. So, progressive prosecutors, they run on those platforms, and they also run, most importantly to me, on a platform of “We are going to correct wrongful convictions. And when people are suffering and dying in prison and they are innocent or they are wrongfully convicted because of corrupt official misconduct, we are going to uncover that, we are going to go to court, and we are going to do the right thing and undo those convictions.”
So, it’s a laundry list of policy positions. And they are brave and they are new in our system, because we’ve had, for so many decades, people running on who can be the toughest on crime. But a lot of Americans are getting really fed up with that, because it’s expensive, it’s ineffective, and it’s unjust and racist. And so, these new prosecutors are embracing reform, and they are running and they are winning on that platform.
AMY GOODMAN: Lara Bazelon, we want to thank you for being with us, professor at University of San Francisco School of Law, director of the school’s Criminal and Juvenile Justice and Racial Justice Law Clinics. We’ll link to your piece in The New York Times, “Kamala Harris Was Not a 'Progressive Prosecutor.'”
That does it for our show. Thursday, Ta-Nehisi Coates. Friday, we’ll be joined by Noam Chomsky. I’m Amy Goodman, with Juan González. Thanks so much for joining us.