The Unknowable Kamala Harris
The complicated career of a self-proclaimed progressive prosecutor
On April 10, 2004, Kamala Harris was in her fourth month as San Francisco’s district attorney. It was a Saturday, the day before Easter. Having prosecuted homicides in Oakland and major crimes in San Francisco, Harris knew the drill: You kept your phone on when you went home Friday night and hoped it didn’t ring. If it did, it was bad news.
Late that Saturday night, Harris’s phone rang. There had been a fatal shooting in the Bayview. That was not a surprise: The neighborhood was (and remains) one of San Francisco’s most dangerous. What was a surprise was the victim — Isaac Espinoza, a 29-year-old cop.
Harris, who lived in a loft in SoMa, the gentrifying area near downtown, rushed to meet her team. She knew the Bayview well — it was where she’d headquartered her campaign for DA the year before. It had been an unconventional choice, but one she’d insisted on as a way of signaling support for the troubled neighborhood. That night, the Bayview station was swarmed with police and investigators while Harris worked with her homicide unit.
Today, Harris is a California senator and a top-tier candidate for the Democratic presidential nomination. But just a year before she was elected DA, only a small fraction of San Franciscans knew her name. She’d campaigned as an underdog for the role of district attorney, going up against incumbent Terence Hallinan and Bill Fazio, another, better-known prosecutor. Hallinan, who was serving his second term, represented the city’s ambivalent relationship with law enforcement: His background was as a defense attorney. When he took office in 1996, he had never prosecuted a case.
Harris, by contrast, had served as a prosecutor in Oakland straight out of the University of California’s Hastings College of the Law. She rotated through the Alameda County District Attorney’s Office, working on misdemeanors and preliminary hearings before eventually moving up to felonies.
“She was tremendous in the courtroom,” says Allison Danzig, who started in the Oakland office with Harris. “She had enormous confidence and skill in front of the jury — and charisma, which is not a surprise now, of course.” Danzig describes Harris as direct and forceful, not too formal. “She was very natural. The image she projected in the courtroom was exactly the same person I knew outside the courtroom.”
Harris was drawn to sexual-assault cases, which are notoriously difficult to prosecute. Jill Nerone, who started her felony-trial rotation on the same day as Harris and later shared an office with her, remembers that if Harris interviewed a victim and believed her, she’d take on the case even if there was scant evidence. “There’s a lot of people who would shy away from those cases, but never Kamala,” Nerone says.
Harris’s ambition was clear, remembers Terry Wiley, who also started in Oakland around the same time as Harris. The Alameda County DA’s Office was top-heavy at that time, so Harris moved across the bay to run San Francisco’s career-criminal unit under Hallinan. She’d known that the office’s numbers were poor — relatively few convictions, lots of unsolved homicides — and she quickly learned why. In addition to a backstabbing culture, the office had a shortage of phones and computers; prosecutors didn’t have email. She stayed for a year and a half before moving to the San Francisco City Attorney’s Office, where she was better positioned to plan a run against Hallinan.
Harris, who grew up in what was then a working-class neighborhood on the border of Berkeley and Oakland, had spent years cultivating her political network, serving on the state’s Medical Assistance Commission and Unemployment Insurance Appeals Board as well as the board of the San Francisco Museum of Modern Art. She was as comfortable in the city’s old-money stomping grounds as in its black and brown neighborhoods. This network paid off in just over a million dollars of fundraising.
Harris presented herself as a more competent alternative to Hallinan — someone who’d spent years in the courtroom and the community and would be able to implement the empathic approach to prosecution that Hallinan merely talked about. During her campaign, she spoke frequently about her opposition to the death penalty. So did both of her opponents. In a town where a vast majority of residents opposed capital punishment, this position was essentially required of anyone running for district attorney.
When she took office in January 2004, she followed through on the competence: Phones were acquired; offices were painted; standing meetings were scheduled. But Espinoza’s death was Harris’s first real test. San Francisco hadn’t had a cop killing in ten years.
By the following afternoon, investigators had homed in on a suspect. David Hill, who was 21, had grown up in the projects in Hunters Point, next to the Bayview, and had been caught up in gang activity since his early teens. He and Espinoza, who had spent years working in the Bayview, had crossed paths before. Espinoza’s partner told investigators that shortly after 9:30 that night, Espinoza had approached Hill on the street, suspecting he had a gun. Hill walked away at first, then turned and fired 14 rounds at Espinoza with an AK-47. Once Hill was in custody, Harris knew that everyone was waiting for her to announce whether she would seek the death penalty. State law authorized execution for someone who knowingly killed an on-duty officer.
Many California district attorneys’ offices at that time had set processes for determining whether to seek the death penalty. Contra Costa County, for example, assembled a committee of lawyers to evaluate arguments for and against, asking the defense attorney for mitigating evidence and consulting the victim’s family. Hill was arrested at 3:30 p.m. on Easter Sunday. On Tuesday, Harris announced her decision: She would be seeking life without parole.
The outcry was swift. The police union, which had supported her during her campaign, became a vocal and increasingly hostile critic. The case got national attention, which built to a head at Espinoza’s memorial service that Friday. Police blocked traffic around St. Mary’s Cathedral, a white spaceship of a church on a hill in the middle of the city. At 8:45 a.m., thousands of uniformed officers gathered in the plaza outside. The city and state political elite turned out en masse: city supervisors, Mayor Gavin Newsom, Senator Dianne Feinstein, state Attorney General Bill Lockyer. Harris mingled with the mourners before the service, greeting Feinstein, who had endorsed her campaign for DA.
Inside the modernist sanctuary, Harris settled in the first pew. Espinoza’s wife and 3-year-old daughter were nearby. In addition to Newsom, the police chief, and the Bayview station chief, Feinstein addressed the crowd. She had been pushing an assault-weapons ban in Congress, so people were expecting her to focus on the need to keep AK-47s off the street. Instead, she called the crime “the definition of tragedy,” deserving of the death penalty. The audience roared to its feet. Harris stayed seated.
“It sucked the energy out of the room,” remembers Lockyer. The president of the police union spoke after Feinstein, reiterating her call for the death penalty and earning another round of applause. As Feinstein left, she reportedly said that she would not have endorsed Harris if she’d known Harris opposed the death penalty.
Tim Silard, Harris’s chief of policy at the time, remembers Harris returning to the office after the service. “She was pretty stunned,” he says. “For prosecutors, we spend our careers working with police officers. These are our colleagues — it isn’t some abstraction. So the implication that she didn’t care about the death of this officer was very disturbing to all of us.” Harris’s communications team did not respond to multiple requests for comment.
The pressure intensified in the weeks following. The police chief circulated a letter urging Harris to change her decision; rank-and-file officers rallied outside the DA’s office; Senator Barbara Boxer urged the U.S. attorney to consider prosecuting the case. Lockyer says that he told Harris his office would need to remove the case from her unless she was able to back up her decision with a factual investigation. “To the extent that her decision was a practical one — mainly that it would be virtually impossible to get a death-penalty conviction in San Francisco — that’s a reasonable basis for a charging decision,” Lockyer says. “But at least in the comments she made, it was more philosophical.”
Lockyer’s office did not end up removing the case, and Harris’s team secured a conviction for second-degree murder and a sentence of life without parole. She published an op-ed in the San Francisco Chronicle two weeks after Espinoza’s murder, defending her decision. “From my career in law enforcement and the law, it is clear to me that the death penalty is deeply flawed,” Harris wrote, citing studies showing that it is applied disproportionately, does not deter crime, and costs a huge amount of money that could in fact be used to deter crime. “As a civilized society, are we going to say that we’re going to kill somebody for killing somebody as punishment?” she asked the paper in a separate interview.
While the furor continues to follow her — a former high-ranking San Francisco cop told me that the local police union “will not be endorsing Kamala Harris for president, let’s put it that way” — the incident also built her credibility in some circles. John Nauer, a Bayview native Harris later hired to run a violence-intervention program in the neighborhood, which had an especially strained relationship with law enforcement at that time, notes that Espinoza’s murder was set against a backdrop of regular homicides of young men of color. “A lot of folks were like, ‘Wow, we’re idolizing this individual, but what about all the other people who passed away?’ ” Nauer says.
“I think many people would say that was a courageous stance to take, because most people think a politician cannot survive if they’re going to be opposed to the death penalty, especially when it comes to a cop killer,” says Laurie Levenson, a professor at Loyola Law School and an expert in wrongful convictions. “So I do give her credit for that. She stood by her principles.”
Then, ten years after the Espinoza case, Harris again found herself facing a high-profile decision on the death penalty. She was California attorney general at this point, actively campaigning for reelection. In July 2014, Cormac Carney, a federal judge in Orange County, ruled that California’s death-penalty system was unconstitutional. Capital prisoners were waiting so long for execution, Carney wrote, that their sentences had become “life in prison, with the remote possibility of death” — an uncertainty tantamount to cruel and unusual punishment.
The case made national headlines and energized opponents of capital punishment. While the Supreme Court has consistently upheld the death penalty, this particular argument against it was new. “Anyone who is opposed to the death penalty was excited to see the federal court speak in such frank terms about the unquestionably broken death-penalty system in California,” says Cassandra Stubbs, director of the ACLU Capital Punishment Project.
But rather than letting Carney’s ruling stand, Harris decided to appeal the case to the Ninth Circuit, which overruled it. At the time, she said she was appealing because the decision was “not supported by the law” and “undermines important protections that our courts provide to defendants.” Lawyers who were involved with and observing the case did not know what she meant by this, and she did not explain it further. “That made absolutely no sense to me, as to what she was saying she was protecting,” says a capital-defense attorney who tracked the case closely.
“To me, one of the most interesting aspects of elected office is deciding when you have representative responsibility and when you should lead,” says former Attorney General Lockyer. In 2008, then–Attorney General Jerry Brown announced that he would not defend Proposition 8, the California voter initiative banning gay marriage. When Harris took over from Brown in 2011, she stuck by his decision, helping to sink the proposition and build momentum toward the Supreme Court’s 2015 opinion legalizing same-sex marriage. Had she made a similar choice on the Judge Carney case, Stubbs says, “I think there’s a good chance that would have been the end of the death penalty in California.”
By this point, Harris’s decision did not surprise many of her longtime observers. A couple years earlier, she’d declined to take a position on a ballot initiative that would have repealed the state’s death penalty, claiming that she needed to remain neutral because her office produced the summaries for ballot initiatives. But this hadn’t stopped almost all other California attorneys general from taking such positions.
In the decade since Harris had first been elected DA, she had built a reputation as a careful politician with an eye on the next office. While her choice not to seek the death penalty for David Hill antagonized law enforcement, it was supported by about 70 percent of San Franciscans, who would ultimately elect her to a second term. By the time she appealed Judge Carney’s decision, however, she was representing a much more diverse group of statewide voters — and actively soliciting them for reelection.
In Harris’s first campaign for attorney general, she ran on being a different kind of prosecutor: one who didn’t have to choose between being “tough on crime” and being socially conscious, but who was instead “smart on crime.” The past few years, however, have brought a wholesale rethinking of prosecution. District attorneys like Larry Krasner in Philadelphia and Kim Foxx in Chicago have successfully run as “progressive prosecutors,” taking comparatively radical steps such as scaling back cash bail and declining to prosecute low-level drug offenses.
Now Harris, playing to a Democratic primary electorate that is demanding increasingly progressive ideas, is seeking to align herself with this movement. “My vision of a progressive prosecutor,” she writes in The Truths We Hold, her 2019 memoir, “was someone who used the power of the office with a sense of fairness, perspective, and experience, someone who was clear about the need to hold serious criminals accountable and who understood that the best way to create safe communities was to prevent crime in the first place.”
Harris’s crime-prevention focus was relatively rare at the time she was district attorney, when most of her counterparts were still riding the law-and-order wave of the 1990s. Her work on diversion and reentry — such as her Back on Track program, a widely lauded reentry initiative for young people arrested for low-level, first-time drug offenses — can be seen as a precursor to some of the approaches taken by today’s progressive prosecutors. But while these prosecutors are attempting to overturn the status quo, Harris has consistently defended it. While they are trying to shrink the role of the office, she has expanded it.
In March, struggling to prove her progressive bona fides, Harris was one of the first to express support when Governor Gavin Newsom put a moratorium on the death penalty during his tenure. She issued a press release pointing to her own opposition “throughout her career in law enforcement.”
A couple of years into Harris’s first term as San Francisco district attorney, she happened upon a statistic: 94 percent of San Francisco homicide victims and perpetrators younger than 25 were high school dropouts. In the preceding years, Harris and the police had struggled to get a handle on the homicide rate; countless crimes remained unsolved because her office couldn’t convince witnesses in gang-dominated neighborhoods to come forward.
Stymied when it came to prosecuting crime, Harris turned her attention to trying to prevent it. One of her first targets was an unlikely demographic: elementary school kids and their parents. “We went to the school district,” says Silard, Harris’s then–policy chief, “and they looked back at the records and found that all of these folks, well before dropping out of high school, had been chronically truant.” And not just in high school — the data showed that these students had missed large portions of elementary school.
Here was a problem that felt more solvable than convincing gang members to testify against one another. Harris decided to try to stop young people from joining gangs and committing crimes in the first place. She and Silard considered their options. Their initial conversations with the San Francisco school district were not productive. “My opinion, frankly, is that for some people within the education systems, not having to deal with some of these kids is not something they’re sad about,” says Silard, who now runs the Rosenberg Foundation, a racial- and economic-justice organization based in San Francisco. “They’re not necessarily taking big efforts to keep these kids in school.”
At the time, California law contained a civil infraction, akin to a traffic ticket, for parents whose kids missed a certain number of days of school, with a maximum fine of $100 and no jail time. Some counties also charged these parents with a criminal misdemeanor for “contributing to the delinquency of a minor,” which carried a fine of up to $2,500 and as much as a year in jail. Harris decided to threaten to enforce these penalties to get foot-dragging parents to pay attention — and to prosecute if they didn’t.
She announced the policy at a meeting in the DA’s office, remembers Keith Choy, who was working as the district’s stay-in-school coordinator. The room was filled with school principals and administrators, school-board members, and representatives from the police and health departments, Choy says. As Harris describes the meeting in her first book, Smart on Crime, the audience “erupted” when she announced her plan — half “sneered and were visibly upset,” while “the other half clapped and cheered out loud.”
“People were pushing back,” Choy confirms. “The big concern was, How can you jail parents and kids for truancy in San Francisco? Nobody ever said it out loud like that. But it was like, Hey, we’re The City. We don’t do that.”
Harris, however, remained committed to the plan. “The idea was not to be punitive,” Silard explains, “but to connect parents to the kind of support they needed to get their kids to school.”
Under the program, parents received a letter on DA letterhead at the beginning of the school year informing them that truancy was a crime and listing the number for a city hotline if they needed help getting their kids to school. Parents were notified when their children had more than 20 unexcused absences. School administrators pulled them into a series of meetings at which they were offered various forms of assistance: busing, child care for other kids, transfers to more-convenient schools. At some of these meetings, an assistant DA would sit in the room, symbolizing the potential for legal consequences. “It was a carrot-and-a-stick meeting,” explains Choy.
In concert with Donna Hitchens, a longtime San Francisco judge who had overhauled the county’s family court, Harris and her team set up a special truancy court for families who did not respond to earlier interventions. Before Hitchens called each case, a social worker would meet with the parents, almost none of whom could afford lawyers. An assistant DA was always present, and hanging over every proceeding was the fact that the city could always attempt to remove the child from the family. Hitchens says that most parents were concerned and embarrassed. “They really wanted their children to be in school,” she says.
In the program’s first two years, seven families were taken to court, and chronic and habitual truancy among elementary school students dropped by 23 percent. Katherine Weinstein Miller, who currently oversees the district attorney’s involvement in the program and has worked on it since 2007, could not provide additional data, but she estimates that 25 or so families are taken to court each year. Miller says the office has only ever charged infractions.
Harris’s approach to truancy was controversial when it began, and it remains so today. In her first book, Harris admits that even her staff “winced” when she decided to take on the issue. “I recognized that the school system might be outside my jurisdiction as District Attorney, but I also realized that I was in a unique position to bring a new kind of accountability to this problem,” she writes. This is partly what Harris means when she describes herself today as a progressive prosecutor — someone who enlarges the prosecutor’s traditional mandate.
While she was campaigning for attorney general in 2010, Harris advocated for a new state law based on her efforts in San Francisco. The law created a criminal misdemeanor charge for parents of habitually truant kids, carrying a maximum fine of $2,000 and jail time of up to a year and laying out an optional model for collaborative truancy courts. While San Francisco has not charged any parents under the new law, other counties have. In a report Harris commissioned in 2013, district attorneys statewide reported prosecuting an average of three to six of the misdemeanors per year, and at least a few parents have gone to jail as a result.
In an April interview with the podcast Pod Save America, Harris expressed regret over how the law had been applied in these cases, calling them “unintended consequences.” “The thought that anything that I did could have led to that, because that certainly was not the intention … it never was the intention,” Harris said.
This apology, however, strikes some as disingenuous. “You can draw a straight line from including in the penal code a jail penalty and the fact that it is an intended consequence,” says a juvenile-justice advocate who worked with San Francisco families experiencing chronic truancy. And while there is no statewide data on how truancy laws are enforced, there is reason to believe that families of color have been disproportionately prosecuted. According to data that Harris collected after she became attorney general, black, Native American, and Pacific Islander students have significantly higher truancy rates than other students. The same is true for foster youth, homeless students, and students with disabilities. The juvenile-justice advocate points to this data to suggest that there are other government departments that would be better suited to addressing truancy than the DA’s office. While she appreciates that Harris brought attention to a largely ignored problem, she says, “We do not need the long arm of the law to come in, because it lets these other systems off the hook.”
Defenders of Harris’s approach point out that those systems were not solving the problem. “The intent was to use the courtroom setting to provide accountability for parents and for various systems that were failing parents,” Silard says.
Even in the glare of a national campaign, Harris remains proud of the program. In an interview with The Root this February, she said, “When I did it, I knew I was going to take a political hit. And the people around me said, ‘Don’t do it, because you are going to pay a price for this in terms of whatever future you want in politics.’ And I said, ‘Look, I’m prepared to play the bad guy on this. I do not intend to put any parent in jail.’ ”
George Gascón was in his first few weeks as chief of the San Francisco Police Department in September 2009 when he stumbled upon something alarming. He was going through disciplinary cases for San Francisco police officers and mentioned to some of his staff that an officer’s file should be evaluated for Brady purposes. His staff members stared at him blankly.
Brady v. Maryland, a 1963 Supreme Court case, requires prosecutors to hand exculpatory evidence over to the defense. Gascón, who is a lawyer himself and ended up succeeding Harris as San Francisco’s district attorney, knew that this obligation extended to the police. When an officer who has previously been disciplined by his department testifies in a case — about his observations of a crime scene, say, or his analysis of forensic evidence — a defense attorney can use that fact to call his credibility into question. So Gascón was wondering what the department’s policy was for determining whether this officer’s file should be given to defense attorneys.
He had handled the aftermath of this issue as an officer in the Los Angeles Police Department, when it was engulfed in what became known as the Rampart scandal. One of the biggest scandals in a police department known for them, it involved more than 70 cops who had helped frame, beat, and shoot suspects, steal drugs, and commit various other misdeeds. Several of these officers had testified in trials even after the department became aware of their behavior, but no one had told the defense about it. The scandal ended up leading to the reversal of more than a hundred convictions.
Steve Cooley, who took over the L.A. district attorney’s office mid–Rampart scandal, designed and implemented California’s first disclosure policy for this kind of evidence. By the time Gascón took over the SFPD, this sort of policy was considered best practice. His officers, however, told him that San Francisco did not have such a policy. (Most DAs in California at this time did not.) He raised the issue with Harris, who was in the midst of her first campaign for attorney general, and she agreed to draft a policy. But it would ultimately take a public shaming by a judge and the press for her to do so.
By March of the following year, it became clear that Harris had not drafted a policy. Gascón abruptly closed the SFPD crime lab because a technician named Deborah Madden had allegedly been skimming drugs for her own use, going back no one knew how long. Not only that, but Madden had been convicted of a domestic-violence misdemeanor in 2008 and had sought treatment for alcohol abuse. Her SFPD disciplinary file had a Post-It note on it that read “Brady Implications.” Meanwhile, she’d been testifying in hundreds of cases involving drug evidence — but no one had informed defense attorneys in any of these cases about either issue.
Gascón ordered an audit of the lab, and defendants in cases Madden had worked on began trying to get them dismissed. It came out that Harris’s head narcotics prosecutor had sent Harris’s deputy, Russ Giuntini, a memo in November alerting him to her concerns about the lab and about Madden in particular. Harris claims that she did not learn about the issues until the following February. Giuntini left the DA’s office after the scandal broke and did not respond to requests for comment.
But Harris soon had a bigger problem. Reporting on the Madden case revealed that her prosecutors had failed to tell defense attorneys in potentially hundreds of other cases about police witnesses with disciplinary records.
When defending this conduct in court, Harris’s office blamed the police for not bringing the records to prosecutors’ attention. The judge rejected this argument, accusing Harris’s office of a “level of indifference” to inquiries about whether it had a policy in place and noting that Harris “had a duty to implement some type of procedure … to ascertain and disclose criminal convictions of SFPD employees.” The judge urged Harris to “be more mindful, going forward, of this obligation to due process.” Harris’s office later argued that the judge had been biased because her husband, an attorney, had a client who’d been affected by the Madden scandal. An independent judge denied the claim.
Harris’s office ended up dismissing approximately a thousand cases, from low-level possession charges to high-level trafficking. As case after case got dismissed, cheering erupted in the courthouse halls. “I don’t think another DA would have dismissed as many cases,” says Chris Gauger, a San Francisco public defender who worked on some of the cases. “She fought certain things hard, but when her back was to the wall and it was time for trial, she’d dismiss the cases.”
Harris also assembled a team of her top deputies and a premier San Francisco defense attorney to create policies for surfacing and disclosing evidence of police misconduct. “It’s fair to say that we took a crisis and turned it into an opportunity,” says Jerry Coleman, whom Harris tapped to help write the policies. “That opportunity was to create the most progressive policy in the state.”
But to many observers, these actions were too little, too late. Brady is a proxy for prosecutorial conscience — a rule for when nobody’s watching. “You’ve got with her on Brady a combination of very questionable decisions in particular cases and, from what I can tell, no programmatic leadership at all,” says Robert Weisberg, a professor at Stanford Law School and an expert in criminal justice. “She says all the right things — frankly, all the right platitudes — about criminal-justice reform. But she tends to lead from behind and wait until she sees the conventional wisdom solidifying.”
One day in January 2015, just a week before Harris announced her campaign for Senate, Patrick Hennessey was in Pasadena, awaiting an oral argument in front of the Ninth Circuit. Hennessey, a San Diego attorney, had been working on this case for nearly 20 years. His client, Johnny Baca, had already been tried twice for the 1995 murders of John Mix and John Adair. Baca had worked as the couple’s housekeeper in their home near Palm Springs and was friends with Adair’s son. Paul Vinegrad, the Riverside County prosecutor who tried the case both times, had argued that Baca had agreed to kill the men in exchange for a portion of the son’s insurance proceeds.
Hennessey, an appellate lawyer, got the first conviction reversed because of mistakes Baca’s trial attorney had made. Hennessey was now arguing that Baca’s second conviction should also be reversed based on how Vinegrad had handled the case.
The crux of the prosecution’s case had rested on the testimony of a man named Daniel Melendez, who had bunked with Baca in a Riverside County jail while Baca awaited his first trial. Melendez claimed that Baca had confessed the murder-for-hire scheme to him. The problem, Hennessey argued, was that Melendez gave this testimony in exchange for a shorter sentence in his own case. While this kind of deal is cut all the time, Baca was entitled to know about it so his lawyer could cross-examine Melendez about his motive to testify.
But he was never told about the deal. In fact, when Baca’s lawyer asked Melendez under oath if he was receiving anything for his testimony, Melendez said no. Vinegrad then called a colleague of his who was handling Melendez’s case. This prosecutor falsely testified that he was not cutting Melendez any favors for testifying against Baca.
Hennessey argued before the California appellate court that this was prosecutorial misconduct, but the court affirmed the conviction, reasoning that Baca would have been convicted even without the false testimony. So Hennessey had taken the case to federal court and finally found himself in front of the Ninth Circuit, the last stop before the Supreme Court. Sitting behind the heavy wooden bench were William Fletcher and Kim Wardlaw, both Clinton appointees, and Alex Kozinski, a Reagan appointee. (Kozinski has since resigned due to allegations of sexual misconduct.)
Hennessey argued first, answering a few mostly technical questions. Then it was his opponent’s turn. The case was being argued by Kevin Vienna, a career deputy attorney general in Harris’s office. Vienna began by admitting that the prosecutors had made some bad decisions. He was not ten seconds into his argument when the judges began peppering him with questions about whether the lying prosecutors had been disciplined (they hadn’t).
Kozinski took the lead, and at one point he asked Vienna if Harris was aware of the situation. Vienna said she was not. An exasperated Kozinski told Vienna to speak to Harris about dropping the case. “Get ahold of the attorney general,” Kozinski said, “get ahold of your supervisor and see whether they really want to stick by a conviction that was obtained by lying prosecutors.” Kozinski told Vienna to play video of the argument for Harris to “make sure she understands the gravity of the situation” and that the case “speaks very poorly for the attorney general’s office.”
Hennessey, watching this pile-on, was “dumbfounded.” He was approached by a couple of other attorneys in the courtroom who told him they’d never seen anything like it. The Ninth Circuit had recently started filming arguments, and this was one of the first to go online. It got passed around among lawyers and picked up on legal blogs, one of which called it “the appellate equivalent of torture porn.”
Three weeks later, Vienna moved to effectively drop the case, allowing Baca a new trial. He claimed that the matter “was discussed with the Attorney General” and that “[i]n the interest of justice, the People have concluded that the conviction should be set aside.”
This decision, as with Harris’s belated implementation of a Brady policy, came only after she had been publicly and humiliatingly backed into a corner by a trio of federal judges. And, as had been the case with the crime-lab scandal, it unfolded during the early stages of a high-profile campaign.
As Harris herself has written in her recent memoir, the discretion not to pursue a case is one of a prosecutor’s more potent tools: “Prosecutors are among the most powerful actors in our system of justice. … They have the power to put criminals behind bars, but they also have the discretion to dismiss cases where police used excessive force, or conducted a search and seizure without probable cause.” Harris, in her role as attorney general, had the power to decide not to defend a conviction obtained by a lying prosecutor. While she eventually found her way to this decision in Johnny Baca’s case, there are many others where her attorneys went to the mat for prosecutors who had withheld evidence, falsified confessions, and operated secret jailhouse snitch programs.
“The attorney general can do a lot to set a tone and set standards and tell DAs what’s expected,” Kozinski told me. “You set a very bad example by defending things that are indefensible.”
In February, Harris went on The Breakfast Club, a morning radio show that has recently become a required stop for Democratic candidates. Sitting in the studio in her standard dark suit and black pearl earrings, a Starbucks cup in front of her, Harris seemed comfortable. The show is hosted by Charlamagne tha God, DJ Envy, and Angela Yee; 60 percent of its audience is black. Harris heckled DJ Envy on his HBCU loyalty — she went to Howard, he went to Hampton — and mentioned her love for Tupac and Cardi B.
When the conversation turned to criticism of Harris’s choice to become a prosecutor, she delivered a mini-speech she’s been giving again and again. “I’m not going to ever apologize for saying that when a child is molested, or a woman is raped, or one human being kills another human being, that there should be serious consequences,” she said. “I’m never going to apologize for that. I also believe, strongly, that the criminal-justice system in America is deeply flawed, and it must be reformed, and that’s why I have dedicated myself to doing the work of, one, focusing on vulnerable populations and making sure they are safe, and, equally, focusing on what we need to do to reform the criminal-justice system.”
But she did admit some regrets. “Did I get enough done? No. Did I want to do more? Absolutely.” Harris later pivoted to her Senate record on criminal justice, specifically a bail-reform bill she introduced in 2017. “I am proposing that we reform America’s bail system and get rid of money bail,” Harris said. “Because I know that people are sitting in jail every day in America because they can’t afford to pay the $20,000 to get out while they’re awaiting trial. Meanwhile, the same person, who committed the same crime, gets out if they’ve got the money.”
Bail reform has recently become a popular cause in the criminal-justice world. But the federal government is relatively toothless when it comes to bail, which is controlled at state and local levels. Harris’s bill, which she proposed with Republican Senator Rand Paul, would incentivize states to reform their cash-bail systems.
If Harris had wanted to do more on bail, however, she had the chance at the end of her tenure as attorney general — and almost took it. In 2016, Harris was defending San Francisco’s cash-bail system in court. The lawsuit challenged the county’s use of bail schedules, which peg certain crimes at certain amounts of money and which prosecutors use to pressure defendants into pleading guilty. The case got national attention when the San Francisco city attorney refused to defend it, calling California’s cash-bail system “not just unconstitutional” but “bad public policy.” George Gascón, who had been working to reform bail in San Francisco after taking over from Harris as district attorney, called this position “the right direction both legally and morally.”
Three weeks later, Harris — who had recently gotten herself dismissed from the case on technical grounds — told the court that she too wanted to intervene. “We will argue that it is unconstitutional for local authorities to impose bail in a way that does not consider a person’s ability to pay, or alternative methods of ensuring their appearance at trial,” a spokesperson for Harris said in a statement. “[D]enying equal access to justice solely based on income is unconstitutional.”
This would have been a groundbreaking move. But then, three days later and with little explanation, Harris backed out. The same spokesperson told the Chronicle that she had changed her mind and would not be intervening in the case.
Up until this point, Harris had not publicly shown concern about cash bail. When she was a young prosecutor in Oakland, she routinely asked judges to set bail for defendants according to Alameda County’s bail schedule. While she was district attorney, she successfully solicited San Francisco courts to dramatically increase the cost of bail for gun offenses, positing that “people come to San Francisco to commit crimes because it’s cheaper to do it” there than in other counties with higher amounts of bail.
“It’s noteworthy that for her entire prosecutorial career, she was in a position to do something to stop the senseless destruction of people and their families through the use of cash bail,” says Alec Karakatsanis, the founder of Civil Rights Corps and a leading voice in the bail-reform movement. “But she didn’t.”
This is the defining criticism of Harris’s prosecutorial years: She had opportunities to reform an unjust system, and she didn’t take them. She has espoused the same values since the beginning of her career. But her actions — and her inaction — have led many to wonder whether she can be counted on to follow through. “People can say a lot of things when they’re running for president,” says Karakatsanis. “We should be watching very closely to see how she wields power if she ever gets it again over these issues.”