Sen. Kamala Harris
joins a demonstration with striking McDonalds workers in Las Vegas, Nev., June
14, 2019. (Mike Segar/Reuters)
Her
tenure as San Francisco’s chief prosecutor reveals much about her character and
judgment.
In 2005, the sharp-elbowed, ambitious district attorney of San Francisco had the opportunity to correct an all-too-common prosecutorial violation of duty that the leading expert on prosecutorial misconduct found “accounts for more miscarriages of justice than any other type of malpractice.” Rather than seize the opportunity, she did nothing. The prosecutor went on to become state attorney general and now represents California in the United States Senate. If she can persuade enough voters to support her in next year’s Democratic presidential primaries, Kamala Harris will contend with President Trump in 2020 for the highest office in the land.
To understand Harris’s 2005 moral failure, we must go
back to 1963. That year, the United States Supreme Court affirmed the unique
constitutional position of criminal defendants. In Brady v. Maryland,
373 U.S. 83 (1963), the Court announced that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” This is
because “society wins not only when the guilty are convicted, but when criminal
trials are fair”; accordingly, “our system of the administration of justice
suffers when any accused is treated unfairly.”
Despite half a century of Brady’s regime,
cavalier (and sometimes willful) prosecutors routinely violate its command,
resulting in untold numbers of court decisions bemoaning these violations,
reversals of criminal convictions, and, at worst, the imprisonment of
innocents. In New York, the causal link between Brady violations
and “wrongful convictions” compelled the chief judge of the New York Court of
Appeals to require criminal trial judges to “issue an order to the prosecutor
responsible for the case to timely disclose exculpatory evidence favorable to
the accused — called Brady material.” Indeed, former chief
judge Alex Kozinski of the United States Court of Appeals for the Ninth
Circuit, which is headquartered in San Francisco, wrote in a 2013 dissenting
opinion from a denial of a rehearing en banc that “there is an
epidemic of Brady violations abroad in the land.”
While it was laudable of Chief Judge Kozinksi to take
judicial notice of systemic prosecutorial misconduct, criminal defense lawyers
have long known what Professor Bennett L. Gershman observed in Shakespearean
fashion, “Brady, one may correctly conclude, is ‘more honored in the
breach than the observance.’”
Accordingly, it is deeply troubling that in 2005 District
Attorney Harris ignored the recommendation of her own assistant district
attorneys that she adopt a “Brady policy” of “disclos[ing] past
misconduct by law enforcement in order to help ensure defendants received a
fair trial,” as the Wall Street Journal recently reported.
Caving to the collective interests of public-sector unions that opposed the
policy, Harris “appeared to lose interest” in protecting the individual rights
of the accused. She neither ratified nor implemented the proposed reform.
Her decision to do nothing came back to haunt Harris in
2010 when, as the Journal explained, “a San Francisco police
crime-lab technician was found to be skimming cocaine from evidence for
personal use” that resulted in about 1,000 cases being “dismissed or dropped
because of tainted drug tests.” San Francisco Superior Court judge
Anne-Christine Massullo castigated Harris for failing to “have in place
policies and procedures designed to discover and produce exculpatory
information” and failing “to produce exculpatory information actually in” the
district attorney’s “possession” about the rogue lab tech.
Had Harris accepted the pleas of her subordinates to
adopt the 2005 Brady policy, this scandal would have almost
certainly been avoided. After a judicial reprimand, 1,000 criminal cases
terminated, and unfavorable media coverage, Harris finally “scrambled to pull
together a Brady policy.”
Harris’s tenure as San Francisco’s chief prosecutor
reveals much about her character and judgment.
In 1940, United States attorney general Robert Jackson
told a gathering of federal prosecutors: “The prosecutor has more control over
life, liberty, and reputation than any other person in America. His discretion
is tremendous. . . . While the prosecutor at his best is one of the most
beneficent forces in our society, when he acts from malice or other base
motives, he is one of the worst.” If Harris, as district attorney, could not
muster the basic decency and sense of fairness to respect the constitutional
rights of criminal defendants whose liberty was at risk, how can we possibly
expect her, as president, to honor constitutional rights that involve less than
the deprivation of freedom but so much of what it means to be American?
CRAIG TRAINOR is a
criminal-defense and civil-rights attorney in New York City. He previously
served as a prosecutor and as a law clerk to a federal judge. Twitter:
@TrainorLaw.
