Kamala Harris’s Offices Fought Payments to Wrongly Convicted
By
Jeffrey Taylor
October 14, 2019, 4:00 AM EDT
- Advocates criticize Harris’ record resisting innocence claims
- Prosecutors used technical arguments to block compensation
Kamala Harris Photographer: Elizabeth Frantz/Bloomberg
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Jose Diaz was exonerated after serving almost nine years in a California prison for two sexual assaults he didn’t commit. But the office of then-Attorney General Kamala Harris wasn’t ready to let him off the hook.
Diaz was convicted in 1984 of rape and attempted rape. He was paroled in 1993, became a registered sex offender, and began the work of proving his innocence. It took 19 years for his conviction to be reversed -- and two more years for the State of California to grant him compensation for the time he was wrongfully imprisoned.
Diaz’s battle with Harris’ office began in 2012 when a judge reversed his conviction. As state attorney general, her staff vigorously resisted his claim for compensation and tried to make him re-register as a sex offender, despite a formal ruling in April 2013 that he was innocent.
The Diaz case is one of a series of battles Harris’ prosecutors waged -- in both the offices of San Francisco district attorney and California attorney general -- to resist innocence claims, often using technical timeliness or jurisdictional arguments, lawyers and innocence advocates say.
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“The goal is justice,” said Gerald Schwartzbach, Diaz’s lawyer. “The goal isn’t just rules, regulations and procedures. They penalized an innocent man with technical arguments. To me that’s fundamentally contradictory to the whole purpose of the criminal justice system.”
Harris is now a U.S. senator running for the 2020 Democratic presidential nomination on the notion that she is a “progressive prosecutor,” threading the needle between law-and-order toughness and a protective instinct for those who need it. Harris told ABC News recently that she became a prosecutor “because I just have a very strong and natural desire to want to protect people, and in particular our most vulnerable.”
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A Harris campaign aide said she was unaware of the Diaz case while it was being litigated by her office, and that it’s rare for an attorney general to be made aware of cases before the state compensation board.
Multiple documents in the case appear on Harris’ letterhead and were signed by staff members with the notation
under their names, “For Kamala D. Harris, Attorney General.”
Distrust Lingers
Whatever her involvement in the Diaz case and other innocence claims, actions by Harris’ offices -- carried out in her name, by people working on her behalf -- have left some voters and advocates distrustful. Criminal justice advocates are critical of her handling of wrongful conviction cases, in particular, saying her offices resisted at least five such claims despite compelling evidence of innocence.
“Kamala Harris should have known” about the Diaz case, said
Lara Bazelon, an innocence advocate and law professor at the University of San Francisco. “If she truly was not aware that these specious and risible arguments were being made in her name, that is a failure of management.”
It wasn’t just Diaz.
- Harris’ district attorney’s office repeatedly delayed responding to the innocence claims of Maurice Caldwell by filing for extensions as Harris ran for attorney general in 2010, keeping Caldwell in prison for more than a year despite evidence that someone else had committed the murder for which he was convicted, according to court records. A judge admonished Harris’ office for the delays and said they might warrant sanctions.
- A state appeals court judge criticized Harris’ office for falsely claiming that the only eyewitness against Jamal Trulove in his murder case feared for her life, making Trulove seem more sinister than he was. The judge said the story was “a yarn” and “made out of whole cloth.” Trulove was convicted, but later exonerated after six years in prison.
- The California attorney general’s office under Harris resisted the innocence claim of Daniel Larsen by arguing that he hadn’t filed his petition for release in a timely fashion, and also contested his request for compensation after he was exonerated. Larsen had been sentenced to 27-years-to-life for possession of a knife under California’s “three-strikes” law.
Harris’ presidential campaign spokesman, Ian Sams, responded to questions about those cases by pointing to reforms Harris enacted.
“Kamala has fought to give ex-offenders a second chance ever since she created one of the nation’s first major re-entry programs, ‘Back on Track,’ in San Francisco, which helped put people in jobs not jails,” Sams said in a written response.
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“Of course, she wishes she could’ve gotten more done,” Sams added, “but she fought to clear the state rape-kit backlog in her first year to ensure evidence is available in cases and, in the Senate, she’s introduced a bill to increase pay for public defenders to improve the quality of defense counsel for individuals in their cases.”
Sams didn’t respond to an email asking whether she was aware of or personally involved in the Caldwell, Trulove or Larsen cases.
Criminal-justice reform advocates praise some aspects of Harris’ record. As San Francisco district attorney, for instance, she resisted calls to seek the death penalty for a man who killed a police officer. As attorney general, she required agents to wear body cameras and created implicit-bias training for law enforcement officers.
Fighting Compensation
After Diaz’s conviction was vacated in September 2012, Harris’ office sent him
a letter telling him that he no longer had to register as a sex offender, as he’d been doing since his parole in 1993. “The DOJ has updated its records and a notification concerning this termination action has been sent to the law enforcement agency that last registered you,” said the document on Harris’ letterhead.
Diaz then filed for compensation, a standard practice in states to pay wrongfully imprisoned people, for some of the earnings they missed.
Both the state compensation board and attorneys working for Harris vigorously challenged Diaz’s right to any money, arguing that he hadn’t obtained a formal judgment of acquittal -- and that the court that reversed his conviction lacked proper jurisdiction.
Offender Registry
The following April, Diaz says, Harris’ office told him that, in fact, he must continue to
register as a sexual offender -- although by that time he had obtained a formal judgment of innocence -- because he’d been released on parole before he filed the petition to vacate his conviction.
Filled with legal citations and precedents, the letter concludes: “Therefore, you are required to continue to register as a sex offender in California.” The letter is signed by a staff member in the sex offender tracking program “For Kamala D. Harris.”
That barred Diaz from coaching his children’s sports teams, he said in an interview, and was a problem when he was looking for work. It also meant that he would continue to be subject to unannounced police visits to his home, as had been happening for 19 years, he added.
Diaz said he believes Harris’ office was trying to intimidate him out of seeking compensation.
“There’s no question in my mind,” Diaz said. “When I received that letter, I was so upset.”
Jurisdiction Questioned
Throughout much of 2012, David Angel, a Santa Clara County assistant district attorney who supervises his office’s conviction integrity unit, investigated Diaz’s persistent claims that he didn’t commit the two sexual offenses for which he’d been convicted. After multiple interviews, including consultations with the victims, Angel concurred.
Angel said he was surprised when Harris’ office fought a judge’s ruling vacating Diaz’s conviction by arguing that Diaz’s defense lawyer hadn’t filed the petition for release in a timely fashion and that the court lacked proper jurisdiction.
“That’s when I called the AG’s office,” Angel said, declining to say who he spoke to. “I told them, ‘I find it hard to believe that you are trying to block what the elected DA of Santa Clara County has called an exoneration.’” Her office withdrew its opposition, he said.
Morally Wrong?
But Harris’ office continued to fight Diaz’s right to compensation for almost a year. Documents filed by Schwartzbach detail filings and arguments both the compensation board and the attorney general’s office used to try to block the claim.
In October 2014, more than two years after his conviction was vacated, Diaz was awarded $305,300 for his almost nine years in prison. The requirement to register as a sex offender was also eventually dropped.
Two experts on prosecutorial ethics were critical of the methods used by prosecutors working for Harris in innocence cases, saying some of the tactics were morally wrong and risked compromising justice.
“The knee-jerk reaction is ‘Oh no, we can’t let someone out on a habeas petition or give them compensation for their time in prison.’ They don’t like to lose, and they see a concession as losing,”
Laurie Levenson, a former federal prosecutor who’s now chair of ethical advocacy at Loyola Law School in Los Angeles, said of Harris’ office and the Diaz case.
Culture Clash
“The sex-offender registration thing is really indefensible,” said
Bruce Green, a professor at Fordham Law School in New York and a former federal prosecutor who was chairman of the American Bar Association’s criminal justice standards committee.
“The idea that some innocent person should have to labor under the branding of a sex offender for the rest of their lives because they didn’t meet the technical requirements, that’s just wrong,” Green said.
Newly-elected attorneys general, Green said, often find a certain culture and set of practices in place in the offices when they take charge. “If you start to overturn convictions others obtained, it doesn’t make you popular with your staff,” he said. “Prosecutors’ offices have an important duty to exonerate wrongly convicted people, just as they do to do justice for those who are guilty. But historically, that wasn’t viewed as part of the job.”
Some other wrongful conviction cases handled by Harris’ offices were also focused on technicalities and timeliness, but sometimes the lack of timeliness was on the prosecutors’ side.
Lost Time
In the Maurice Caldwell case, Harris’ DA’s office filed for multiple extensions rather than responding to his innocence petition, causing Caldwell to spend an extra year in prison before he was exonerated, said
Linda Starr, co-founder of the Northern California Innocence Project at the Santa Clara University Law School.
Caldwell had been convicted of murder in 1991 in the fatal shooting of a woman during a botched drug deal. After doubt was cast on the lone eyewitness whose testimony led to his conviction, the innocence project and a private investigator located Marritte Funches, a man already serving a life sentence in Nevada for another murder, and he confessed.
Harris was running for California attorney general when Caldwell filed his
petition for release, and by the time San Francisco Superior Court Judge Charles Haines reversed his conviction, she’d been elected. The district attorney’s office’s slow response earned a written admonishment in
the judge’s order.
Flawed Case
“The court finds the delay in filing the return to be egregious, and possibly deserving of sanctions,” Haines said.
“If Kamala would have stopped this in 2009 or 2010, I wouldn’t have been in for the extra years,” Caldwell said in an interview. “I would have been able to come home and bury my mother.”
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judge declared in 2014 that false statements made by a prosecutor working for Harris about the fears of the only eyewitness against Jamal Trulove had likely prejudiced the jury. For that and other reasons, including questions about the competence of Trulove’s original lawyer, the judge overturned Trulove’s conviction, remanding the case for a new trial. Trulove was acquitted in a second trial after his lawyers introduced ballistics and other evidence that cast doubt on the witness’ story.
Concealed Knife
Harris’ attorney general’s office tried to keep Larsen in prison under California’s three-strikes law for possession of a concealed knife found during a fight outside a suburban Los Angeles bar. Claims had emerged that someone else had been carrying the weapon and there were concerns that Larsen’s trial lawyer was incompetent.
Harris’ office also
contended that Larsen’s arguments were too late. “A federal habeas petition filed even one day late is untimely and must be dismissed,” the office said. After Larsen was released, Harris’ office
successfully campaigned against compensation for the more than 13 years he was imprisoned.
Jose Diaz, meanwhile, says he still struggles with the trauma of having been wrongfully convicted of sexual assault and forced to register as a sexual offender for months after his exoneration.
“What her office did was wrong, and the buck stops with her,” Diaz said.
