The following article is a written adaptation of an episode of What Next, Slate’s new daily news podcast. Listen to What Next via Apple Podcasts, Spotify, TuneIn, Stitcher, Overcast, Google Play, or iHeart.
When Sen. Kamala Harris introduces herself, she’s known to say the same thing again and again: She talks about being a prosecutor.
It’s more than just a line on her résumé. It’s this vibe she has. Last year, when the world saw her grilling then–Supreme Court nominee Brett Kavanaugh, she had this look on her face—eyebrows arched, chin down, lips pursed, like, “I know he’s lying.” And the internet loved it.
“Goddamn, Kamala Harris brings it, man,” Trevor Noah, the host of The Daily Show, said during a recap of the hearings.
For Kamala Harris, being a prosecutor means she’s tough. It means she’s the boss. It can be a cordial way to say, “Thank you, next.”
But what does Kamala Harris’ history as a prosecutor really mean? I explored that in a recent episode of What Next, Slate’s new daily news podcast, with someone who’s usually on the other side of the courtroom: Lara Bazelon. She used to be a public defender. Now she trains defense attorneys.
Bazelon is an associate professor at the University of San Francisco School of Law, just a few miles down the road from where Harris got her start at the San Francisco District Attorney’s Office. She’s also a contributing writer for Slate and author of the book Rectify: The Power of Restorative Justice After Wrongful Conviction. She also recently penned the op-ed “Kamala Harris Was Not a ‘Progressive Prosecutor,’ ” in the New York Times.
“Essentially, what I’ve devoted my advocacy to is fighting on behalf of people who are poor and have no voice, and quite often those are people of color,” she says. “I’ve never crossed paths with [Harris], but like so many people who do the kind of work that I do in California, I’m intimately familiar with her record, because we’ve lived under her regime.”
Bazelon says that going inside Kamala Harris’ “regime” is the only way to get beyond her presidential rhetoric. She has some real questions about how Harris fought crime on behalf of the state of California and whether she did it the right way.
In Harris’ new book, The Truths We Hold, she doesn’t just call herself a prosecutor. She calls herself a “progressive prosecutor.” Bazelon noticed it when she picked up Harris’ new book.
“When I read that chapter of her book, and she uses that phrase, progressive prosecutor, my mouth kind of fell open,” Bazelon says.
I asked her why.
“Because she’s not one,” Bazelon says. “She’s calling herself that, I believe, because it’s become this very trendy, buzzy word with a lot of positive political connotations attached to it. It signals that you are reform-minded. It signals that you are forward-thinking, and she wants those associations.”
I asked Bazelon to tell me what a progressive prosecutor looks like. She gave me a few examples, starting with Larry Krasner in Philadelphia.
“Larry Krasner came in and he said, I was a former federal public defender and a civil rights attorney, and I’m here to make change. And he proceeded to fire over 31 old-guard DAs who were putting in place pretty awful policies, in my view,” she says. “He started instructing his line prosecutors not to prosecute certain low-level felonies. He’s not going to seek the death penalty, which is a big deal in Philadelphia County, where most of the people in the state of Pennsylvania who are on death row come from.”
There’s also Wesley Bell, who just took office in St. Louis.
“He was elected in the wake of Ferguson,” Bazelon says. “He is very committed to looking into officer-involved shootings. He too fired a lot of the old guard. There are many, many examples of progressive prosecutors, and we are right now at a time when more and more people are running for district attorney and winning on true reform platforms.”
But Kamala Harris?
“She’s just not in that group,” says Bazelon.
Before she was a senator, Kamala Harris got her start as a line prosecutor in the Alameda County District Attorney’s Office, and then she moved on to the San Francisco District Attorney’s office, where she worked under a man named Terence Hallinan.
“[He] was considered to be a reformer,” Bazelon says. “Then [Harris] made this decision to challenge him—to run against him—which I think he saw, actually, as a real betrayal, because I think he saw her as a protégée. She ran on a platform [with a message like,] This office is in disarray, and the conviction rate is really poor, and we need to step up our game.”
Bazelon continues, “He was a former public defender who ran and won as the San Francisco district attorney, and he was considered to be pretty liberal. Now, of course, we’re talking about San Francisco, so this is a community that’s quite different than many, many other communities that elect district attorneys across the United States. But yes, he was someone who came from a defense background.”
While Harris was a prosecutor, Bazelon points out that she didn’t always push for progressive policies. For example, she made it so that parents could be prosecuted for a child’s school truancy, which critics say hurt families of color. And Bazelon has some concerns about the justice that was administered under Harris’ watch.
“She fought to uphold tainted convictions,” Bazelon says. “That’s from my perspective as someone who ran an innocence project and is an innocence advocate. There are other cases that bothered me as well, including her real inability to respond in an appropriate way, for example, when there was a big crime-lab scandal in San Francisco in 2010. When she was running the DA’s office, 600 cases had to be dismissed.”
She continues, “It became clear as these cases were being litigated that the higher-ups in her office were well aware of the corruption of the lab technician whose work was at issue and did not turn that information over to the defense as they were required to do. A judge got quite angry and issued a long ruling sternly rebuking Harris, and her response was to challenge that ruling by arguing that the judge’s husband was a defense attorney who had spoken publicly about the importance of disclosures in these kinds of situations and that therefore the judge was conflicted.”
Like President Trump has done with judges in the past, Harris made things personal.
“Rather than reflecting on what had gone on and what the judge had rightly pointed out to be failures in oversight and worse by her office, instead she took on, I think, a pretty meritless personal attack,” Bazelon says.
This theme of Harris digging in, even when there’s evidence of prosecutorial misconduct, can be seen elsewhere in her career too. Take the case of Johnny Baca, who was convicted for murder in state court in the ’90s.
“Basically, the state’s case turned on the testimony, in large part, of a jailhouse informant,” says Bazelon. “During the course of the litigation, one of the lead prosecutors in the case actually committed perjury in an effort to secure the conviction, which worked. Then Johnny Baca proceeded to go to federal court to try to get relief, and at that point it was up to Kamala Harris as the attorney general to defend that conviction or, in her discretion as a prosecutor whose mission is to seek justice, to move to vacate that conviction because it was tainted, and she chose the first path.”
Bazelon says that three appellate justices on the 9th Circuit ended up berating the prosecutor whom Harris sent in to defend the conviction. In the end, the judges ordered a retrial—something Bazelon credits to public pressure.
“[There’s] this other case involving a man named George Gage, where there was a lot of misconduct used to secure his conviction, and actually, quite frankly, I think the evidence of his innocence is more compelling than in Baca’s case, but he didn’t have a celebrity judge—his video didn’t go viral,” says Bazelon. “I really feel like that may have been the difference, because in both cases the judges made it clear that they expected the line prosecutor to go back and talk to higher-ups in the office and do the right thing, and in one case she did, with Johnny Baca. In the other case, she didn’t, with George Gage.”
Bazelon says that George Gage was a 60-year-old electrician with no criminal record. He entered into a marriage with a woman named Wanda, and the marriage went very wrong. Gage had an extramarital affair, and Wanda divorced him and moved away with her daughter, Marian.
“Years later, Marian brought forward allegations that Gage had sexually abused her when she lived with him as a kid, and because so much time had passed, the only evidence was Marian’s testimony,” says Bazelon. “George Gage was indicted and tried, and the jury hung the first time. He was offered a plea deal that would have essentially given him time served, because he had been incarcerated. He said, No, I am not a sexual predator—he adamantly insisted that he was innocent.”
Bazelon continues, “There was a second trial. He was convicted. Afterward, the prosecutor, who’s now a judge, sought the maximum possible penalty. In response, the court asked for some documentation that it turned out the prosecutor had suppressed—reams of material, including medical and psychiatric records that were quite damning of Marian in terms of her truth-telling ability. The most damning to me is a hospital intake form where her own mother wrote on the form, ‘My daughter is a pathological liar and she lives her lies.’ ”
Under the law, Bazelon says that all of this information should have been disclosed, but it was hidden.
“The trial judge read the material and reacted so strongly that she wrote an order overturning the conviction,” Bazelon says. “Ironically, the misconduct of the prosecutor meant that he prevailed on appeal, because the California appellate court said, Well, the jury never considered this evidence, and so, judge, you can’t reverse on that basis. Then the case gradually, over time, made its way through various courts and ended up in the 9th Circuit.”
The prosecutors working for Harris defended the conviction. The appellate judge made a signal to Harris’ office to dismiss the case, but she did not budge, and the conviction was ultimately upheld on a technicality. Today, George Gage is 80 years old. He is partially blind and he is dying, slowly, in a prison in California.
“I’m a big proponent of restorative justice,” says Bazelon. “We are talking about a lot of people whom [Harris] has harmed, not directly, but by using her power to wield legal technicalities to cement injustices or, in some cases, just simply failing to live up to her responsibility to disclose evidence, for example, in the case of the crime-lab scandal in San Francisco.”
But this isn’t a binary situation. Harris has also done a great deal of good as a prosecutor. Bazelon points to the “Back on Track” program, which gives first-time offenders a shot at a second chance. She also rolled out implicit-bias training as attorney general and cleared a backlog of rape cases.
So as her presidential campaign kicks off, what should Harris do now to win over skeptics like Bazelon?
“I think, first of all, she owes those folks an apology,” she says. “Second of all, I think she owes them some kind of act to help them get justice. I would hope that if George Gage is able, for example, to pull together a petition for clemency or for commutation, that she would do the right thing and support it. I think she’s taken some steps in that direction.”
Bazelon points to the case of Kevin Cooper, who is on death row in California. He was convicted of murdering four people but has always insisted he was innocent.
“His trial was infected by racism and corruption by the police,” says Bazelon. “When [Harris] was the AG and Kevin Cooper sought DNA testing—advanced testing to prove his innocence—she opposed it. Then Nicholas Kristof, the Pulitzer Prize–winning New York Times columnist, published an expose of Kevin Cooper’s case, and it went viral.”
After Kristof’s article was published, Harris reversed position and said that she would support DNA testing, which was ordered by former California Gov. Jerry Brown in late December.
“I think to convince skeptical folks like me, [Harris] needs to do more and more and more of that, and reckon honestly with her record, “says Bazelon.
People have come out against Bazelon’s critiques of Harris and have accused her of “participating in a firing squad,” but she says she has good reason to take a stand.
“I am not going to vote for Donald Trump,” Bazelon says. “I am going to vote for whoever the Democratic nominee is. But right now, we have a chance to carefully vet and find the best possible candidate, and we are blessed with so many people jumping into this race. I don’t see any reason at this point not to carefully consider the record of each candidate so that we can make the most informed decision possible.”