#Kamala Harris’ rampant prosecutorial abuses

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Democratic vice presidential candidate Kamala Harris.
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“America has a deep and dark history of people using the power of the prosecutor as an instrument of injustice,” Kamala Harris wrote in her 2019 campaign tract. “I know this history well — of innocent men framed, of charges brought against people of color without sufficient evidence, of prosecutors hiding information that would exonerate defendants, of the disproportionate application of the law.”

She should know. As a prosecutor, Harris too often abused her office in just the way she decried as a campaigner.

The former San Francisco district attorney and California attorney general is the last person who should lecture anyone on out-of-control prosecutors. When she talks about framing the innocent and hiding exculpatory evidence, Harris is either projecting or engaging in rank hypocrisy.

Some of Harris’ prosecutorial shenanigans are well-known by now. In 2010, a California Superior Court judge blistered Harris’ DA office for violating defendants’ rights by covering up detrimental information about a drug-lab technician. The judge concluded that prosecutors working under Harris had failed to fulfill their constitutional duty to tell defense attorneys information about prosecution witnesses that might challenge their credibility. The failure of Harris’ prosecutors led to the dismissal of more than 600 drug cases.

Hiding information, indeed.

As California attorney general, Harris appealed a judge’s decision to remove the Orange County district attorney’s office from a death penalty trial after evidence emerged that the sheriff’s department had been operating an unconstitutional jailhouse snitch program. The program tainted more than a dozen criminal cases, several of them murder trials.

Californians witnessed more of Harris’ devil-may-care — or devilish — approach to government corruption and misconduct in the Moonlight Fire case. In 2007, a late summer wildfire had burned 65,000 acres in the California Sierras. The California Department of Forestry and Fire Protection’s lead wildfire investigator lied repeatedly about the inferno’s origin and cause. He also destroyed his investigatory notes and, along with the US Forest Service investigators, falsified the joint origin-and-cause report and various witness statements. The goal was to pin the blame — and cost of fighting the fire — on private landowners.

When California Superior Court Judge Leslie C. Nichols reviewed the case, he found the investigatory and discovery abuses so “pervasive” and “egregious” — so “corrupt and tainted” — that he terminated Cal Fire’s action and administered sanctions. He ruled that Cal Fire’s targets could never get a fair trial. The California Court of Appeals upheld Nichols’ overall ruling. In reviewing the abuses in the joint federal-state Moonlight investigation, the appellate court found “substantial evidence” Cal Fire “repeatedly presented false, misleading or evasive discovery responses” and deposition testimony in addition to improperly destroying field notes despite probable civil litigation.

In the course of the Moonlight Fire litigation, the landowners’ attorneys discovered that Cal Fire illegally diverted $3.66 million in state funds to a secret slush fund controlled by a small group of Cal Fire employees. This was a felony under state law, and California legislators asked Harris to investigate this misappropriation of public funds. Harris, however, said she couldn’t investigate because she was representing Cal Fire in the Moonlight Fire lawsuit. She claimed that Cal Fire was, therefore, her “client and she had an ethical conflict of interest.”

It’s worth considering the implications of Harris’ lame claim that it is impossible and unethical for the attorney general to investigate the executive-branch employees of agencies because the attorney general represents the executive-branch agencies in certain lawsuits.

If she takes that position at the federal level, there could never be a Department of Justice investigation of any executive-branch employee. This is preposterous. It seems clear that Harris refused to investigate, because it would have disclosed felony conduct that would be difficult not to prosecute. And any investigation would have also demonstrated that her Moonlight Fire lawsuit was fraudulent.

If the Biden-Harris ticket triumphs in November, she will be a heartbeat away from the presidency. Yet there is a pattern and a practice — “a deep and dark history” — of Kamala Harris “using the power of the prosecutor as an instrument of injustice.”

Ann Corkery is a lawyer in Washington, DC.