Anyone interested in justice was entitled to feel a Chris Matthews thrill up their leg when Tulsi Gabbard went after Kamala Harris for her record as state attorney general at the Detroit debate.
Gabbard pointed out that as California’s AG, Harris refused to allow DNA testing that would’ve exonerated a death-row inmate and prosecuted more than 1,000 marijuana cases—though as a candidate she later laughed with a radio host about her own pot-smoking past.
But that’s just the tip of the iceberg when it comes to Harris’s tenure.
There’s the case of Daniel Larsen. After 11 years of incarceration, a federal judge ruled that he was innocent. Harris kept him in prison for two more years while she appealed this decision on a technicality: She argued that Larsen hadn’t provided proof in a timely manner.
This was not her only bad conduct with regard to wrongfully convicted citizens.
My two indirect experiences with Harris’s department during her tenure as attorney general (from January 2011 to January 2017) revealed a similarly callous regard for justice. The first was as a pro bono habeas investigator trying to free an innocent young man named Eric Frimpong from prison. The second was as an author chronicling the wrongful civil prosecution of a California company by both the State of California and the Department of Justice. In both, the deputy attorneys general working for Harris, if not at her behest, seemed less concerned with doing justice than with keeping the conviction count up and scoring a payday for the state.
The case of Eric Frimpong will never not break my heart. Eric had come to the United States from Ghana in 2005, recruited by the University of California at Santa Barbara to play soccer. He learned English, made friends, did well in school with his dual math majors, and impressed almost everyone he met as charming, bright, and ingenuous.
In his second season, the center-midfielder led UCSB to the national championship, its first in any sport. Hailed as a hero, he was drafted by the Kansas City Wizards of Major League Soccer and planned to play professionally after graduating in June. But less than a month later—February 17, 2007—a freshman accused him of raping her on the beach below the cliff-side apartment he shared with several others students.
I spent two years investigating every aspect of the arrest, trial, and conviction, doing what the defense attorney, Robert Sanger, and his paid investigator didn’t do. During trial, Sanger was unfamiliar with the prosecution’s evidence forwarded to him under discovery, so he missed myriad contradictions and self-refuting statements that would’ve allowed him to easily undermine the prosecution’s case. And because he’d never visited the sites pertinent to the case, he didn’t understand that the prosecution’s version of events was logically, chronologically, and geographically indefensible.
Worse, he essentially stipulated to the case’s veracity without offering the jury any reason to doubt it. No wonder they voted to convict.
A decade ago, I spent 20,000 words citing the evidence I’d uncovered to explain why I’m certain that, whatever happened to Jane Doe, the perp couldn’t possibly have been Eric Frimpong. Without question, he’d been railroaded by a racist cop and a conscienceless assistant district attorney interested not in justice but in convictions. And then he’d been abandoned by a do-nothing defense attorney. Everything I found was compiled into a 700-page petition for a writ of habeas corpus filed in Santa Barbara Superior Court in December 2010. The petition didn’t just raise reasonable doubt; it established Eric’s innocence.
What I hadn’t suspected until then was that the trial judge, Brian Hill, was equally worthy of contempt. As presiding judge of the court at the time, Hill assigned himself the petition, then broke judicial canon by trying to refute the substantial evidence in the petition with his own research. One example should convey the flavor of how perverted was his denial of the petition:
According to the prosecution, Jane Doe had walked 300 yards on the beach at night under the dark of a new moon to reach a set of stairs leading up to the street. (Doe herself never claimed these actions; in fact, she said only that she’d gotten up after the incident and gone straight to the street.) When she was found wandering in a daze (with a blood-alcohol level of about .30), she had no sand on her and her jeans were completely dry. Using verified tide charts from the National Oceanic and Atmospheric Administration—which the defense attorney had never bothered to look at—the petition established that, at 12:30 a.m., there would have been no way to cross the beach in question without getting wet at least up to the knees.
But Judge Hill decided to investigate this question on his own by consulting some tide charts he found on a website. The tide, he wrote in his denial, was low at that time, so he believed that Doe could have reached the stairs without getting wet. How did he conclude that the tide was low rather than at the level NOAA had verified? Simple. When he went to his tide chart website, he didn’t bother to change the setting from Greenwich Mean Time to Pacific Standard Time.
This was not Judge Hill’s only mistake. His denial also imagined trial testimony that didn’t exist and ignored the sworn declaration of an alibi witness whom Sanger hadn’t called.
The new defense team for Eric Frimpong put together a 100-page reply brief that comprehensively dismantled Judge Hill’s inaccuracies and appealed his denial to the state Court of Appeal. At the time, Team Eric assumed that, because the evidence of wrongful conviction was so overwhelming, we would be unopposed by the state attorney general’s office. (At the appellate level, the AG’s office takes over from the local district attorney and represents the interests of the people.)
In fact, we anticipated that Kamala Harris’s office would, in the interest of justice, recommend vacating the conviction.
But no. Not in the Court of Appeal, not in California Supreme Court, not in federal district court, and finally, not in the 9th Circuit Court of Appeal—all of which summarily dismissed Eric’s case.
When you see this sort of thing once, maybe it’s just a case slipping through the cracks. When you see it over and over, it begins to look a lot more like someone’s plan for career advancement.
And advance Harris did. Not Eric Frimpong, though. After serving his seven-year sentence, Eric was deported to Ghana, where his math degrees ought to have guaranteed him a secure future. Alas, as a lifetime registered sex offender, he can’t work for any multinational company. Nor, for the same reason, can he even coach soccer. He’s left to scrape by as best he can. In short, his life was ruined.
My second encounter with Harris’s department came while following a lawsuit that grabbed my interest and became the subject of a book.
After signing a joint prosecution agreement that allowed them to share witnesses and resources for their all-but-identical cases, both the feds and the state of California sued Sierra Pacific Industries (SPI), a prominent Northern California forest-products company, for damages from a forest fire that had burned 65,000 acres in the Eastern Sierra in September 2007. Claiming negligence on SPI’s part, California sought about $10 million in cost recovery, the United States wanted $1 billion.
The suits were filed in 2009 based on the origin and cause report filed by California Department of Forestry and Fire Protection (Cal Fire) investigator Joshua White. SPI knew all along that its personnel had not caused the fire, so the company fiercely contested the suits.
Discovery would go on for nearly three years. By 2011—when Harris was attorney general—SPI’s lawyers had conclusively discredited White’s report blaming SPI. White had not conducted a good-faith investigation but instead had skewed his findings, rushed his conclusion, hid exculpatory evidence, fabricated inculpatory evidence, and invented both a false theory of the fire and a false ignition point for the fire—all to justify the predetermined conclusion that one of SPI’s bulldozer drivers had started the fire.
Knowing that their case was tainted, the assistant U.S. attorney prosecuting, Kelli Taylor, and the state deputy attorney general, Tracy Winsor, were legally and ethically obliged to drops the suits. But both not only continued, they doubled down on the perfidy.
First would come the federal case. SPI’s lead lawyer, William Warne, looked forward to a decisive win that would provide the added benefit of forcing investigator White to choose between perjuring himself on the stand or admitting how dishonestly he’d done his job.
But the feds got lucky when a judge made a pre-trial ruling that prevented SPI from putting on the stand a young man who the evidence strongly suggested might have been the actual cause of the fire. Without him as a powerful symbol of the failed investigation, the company was forced to negotiate a settlement (about $120 million in cash and land) rather than risk a trial which could’ve resulted in its bankruptcy.
Now SPI counted on the California trial, knowing that the state judge would almost certainly allow the young man to take the stand. But did Harris’s office pull the case? No. Instead, they pressed on, only to be smacked down by the trial judge.
Judge Leslie Nichols read hundreds of pages of pretrial motions and studied the evidence just before the trial scheduled for July 2013. Then he issued his ruling. He (a) found pervasive misconduct, (b) called the state’s case “corrupt and tainted,” (c) summarily dismissed it, and (d) ordered Cal Fire to pay the defendants $32 million—the largest discovery sanction ever ordered by a judge against a government agency—for its “egregious and reprehensible conduct.”
Nichols wrote that “The sense of disappointment and distress conveyed by the court is so palpable, because it recalls no instance in experience over forty-seven years as an advocate and as a judge in which the conduct of the attorney general’s office so thoroughly departed from the high standard it represents.”
The office the judge was talking about, of course, belonged to Kamala Harris.