BROOKE GLADSTONE From WNYC in New York this is On The Media. Bob Garfield is out just one more week. I'm Brooke Gladstone. And this clearly has been the week of the prosecutor.
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REP. RESCHENTHALER You made a decision not to prosecute, correct?
ROBERT MUELLER No, we made a decision not to decide whether to prosecute or not.
REP SENSENBRENNER Why did we have all of this investigation of President Trump that the other side is talking about when you knew that you weren't going to prosecute him.
ROBERT MUELLER Well, you don't know where the investigation is going to lay and, 'oh, see opinion itself,' says that you can continue the investigation even though you are not going to, uh, indict the president. [END CLIP]
BROOKE GLADSTONE Once again, those who cherish the belief in salvation through Robert Mueller, were deflated when he didn't save the republic. Yet, it's an American article of faith that's saving us is what a prosecutor does. In fact, many prosecutors, apparently not Mueller, themselves believe that that is what they do. This week, one of them died at the age of 99. Robert Morgenthau, chief federal prosecutor for Southern New York state for nine years and Manhattan as hard as nails DA, 35. Here he is in 1983 when crime was soaring.
MALE CORRESPONDENT There's a lot of pressure on you all the time.
ROBERT MORGENTHAU There's a lot of--yeah, and--and it's hard to plan your time because people commit crimes every day of the week. And the arraignment courts run 24 hours a day now in Manhattan. [END CLIP]
ELIOT SPITZER Street crime was still something that people worried about day in and day out.
BROOKE GLADSTONE Eliot Spitzer served six years as a prosecutor in the Manhattan DA'S office under Morgenthau. And eight years from 1999 to 2006 as state attorney general himself where he earned the moniker Sheriff of Wall Street for his corruption probes of the financial industry. Then he was elected governor but resigned a year in after a prostitution scandal. He knows a thing or two about public image–especially the image of prosecutors in the good old bad days raging crime.
ELIOT SPITZER Prosecutors were the good guys making the streets safe both from the ordinary street crime robberies and the theft of radios out of cars to homicides and rape to organized crime that was viewed, at least, as controlling the fish market, concrete, trucking and the garment district which is the case I made. So we were the good guys back then. Restoring order to what was viewed as an orderless society.
BROOKE GLADSTONE But the zealous Morgenthau was slammed for brushing off police corruption, racial bias, police brutality. After five years in Morganthau's office the young lawyer Sonia Sotomayor concluded that the DA is lock them up daring do was misguided. 'We think we're keeping the people safe from criminals,' she said 'we're just making worse criminals.' So now the new faith is in electing a new kind of DA. The progressive prosecutor whose programs safeguard public safety by supporting communities by reducing mass incarceration while saving heaps of money. It's happening in Philadelphia--.
LARRY KRASNER And the cash bail system keeps broke people in jail because they're broke–and that's a problem. [END CLIP]
BROOKE GLADSTONE In Chicago.
KIM FOXX The incumbent has had seven years to make justice reform, you know, a reality here in Cook County. We've not done that. [END CLIP]
BROOKE GLADSTONE In Boston.
RACHAEL ROLLINS What I'm saying is jail is a last resort, with respect to these 15 misdemeanors that are nonviolent, more quality of life crimes. [END CLIP]
BROOKE GLADSTONE In St. Louis, Kansas City, Houston, Dallas, San Antonio and elsewhere. It's a movement generating passion and support all across the political spectrum. The stunningly powerful and radically changing role of the DA is the subject of this hour. One presidential candidate has been eager to wear the label of the progressive prosecutor.
KAMALA HARRIS As a prosecutor, my duty was to seek and make sure that the most vulnerable and voiceless among us are protected. [END CLIP]
BROOKE GLADSTONE But with a mixed record as a former San Francisco DA and attorney general of California--.
KAMALA HARRIS To reform the criminal justice system, understanding that it is deeply flawed and in need of repair. [END CLIP]
BROOKE GLADSTONE She's having some trouble making it stick.
LARA BAZELON When she decided to run for president, Kamala Harris wrote a memoir. And in that memoir she described herself as a progressive prosecutor and she talked about the importance of racial justice and social justice and being on the right side of history.
BROOKE GLADSTONE Lara Bazelon is a law professor at the University of San Francisco School of Law and former director of the Loyola Law School Project for the innocent in Los Angeles. She recently wrote an op-ed titled Kamala Harris Was Not a Progressive Prosecutor.
LARA BAZELON We have a very problematic history in this country particularly of locking up disproportionately people who are of color, people who are poor innocent people and she specifically referenced that. And it riled me up because as someone who's represented those people my whole life against prosecutors just like her, I understand that she's actually been on the wrong side of that history.
BROOKE GLADSTONE One of her most widely criticized policies is one that she's boasted about. Prosecuting parents whose children are habitually truant in elementary school.
LARA BAZELON Yes its idea is to end habitual or chronic truancy by penalizing the parents and the thought is it incentivizes them to get it together and make sure their kids go to school. But the law has been widely criticized because, first of all, the only people who get caught up in this are, once again, poor people in communities of color and, second of all, how helpful is it really to separate families that are pretty clearly in distress.
BROOKE GLADSTONE When a bill came up requiring the investigation of officer involved shootings, she opposed that.
LARA BAZELON There was a lot of protest from people who actually had formerly been her allies both in the black legislative caucus and also Black Lives Matter activists when she did not support a bill demanding that her office investigate police involved shootings.
BROOKE GLADSTONE What was her position on the death penalty?
LARA BAZELON When she first assumed office as district attorney in San Francisco, there was a case where a police officer had been shot and killed and she had run on a platform of not seeking the death penalty and she didn't seek the death penalty in that case. And she got a tremendous amount of blowback from politicians like Dianne Feinstein who basically called her out at the officers funeral and other law enforcement figures in the state. Then you fast forward to when she is attorney general and she won her initial run by less than 1 percent of the vote. It was a very, very close election and she did not have the support of major law enforcement groups. At that point during her tenure, there was a judge in Southern California who found the death penalty to be unconstitutional and it was her decision whether to defend the law or whether to agree with that judge. And she chose to defend the death penalty and successfully argued for it to remain in place in California.
BROOKE GLADSTONE You say though that the worst thing about her record as a prosecutor are her decisions on wrongful conviction cases.
LARA BAZELON I'm someone who spent part of my career advocating for people who've been wrongfully convicted and I can tell you that the biggest barrier as the attorney can often be the prosecutor just doubling and tripling down on these false convictions and refusing to admit that they were wrong to the point of denying the victims justice and stealing somebody's life. And so when you see somebody in the position of the attorney general repeatedly defending these tainted convictions knowing that harm in that damage and that drastic unfairness that does seem to me to be the most problematic part of her record.
BROOKE GLADSTONE And in your column you talk about George Gage you talk about Daniel Larsen and Kevin Cooper.
LARA BAZELON This is an infamous case in California. Kevin Cooper was convicted of murdering a family. He's African-American, the family was white. It was an absolutely horrific murder. He always claimed to be innocent. There are all kinds of really powerful discrepancies in the evidence and the trial was incredibly racialized. There were signs outside saying hang the N-word. Post conviction it turned out that all kinds of lies have been told and evidence had been suppressed. And Kevin Cooper, after his appeals had been exhausted and hours away from execution. And it had a number of judges say we think that this man may actually be innocent, asked the attorney general, who is then Kamala Harris, to order DNA testing and she refused. And then when Jerry Brown was leaving office late last year he did order certain items to be retested and this was after Nicholas Kristof the Pulitzer Prize winning journalist for The New York Times wrote this viral exposé of the case. And after Jerry Brown issued that order, our new governor, Gavin Newsom, issued an even wider ranging order. And when Nicholas Kristof went back to Karmala Harris, she reverse position and said she now did support DNA testing for Kevin Cooper even though she had previously opposed it. Of course, now she's not in a position to be granting it or not granting it.
BROOKE GLADSTONE When I think about the old style prosecutor and the progressive kind, I think that it's about where you set your target. Do you set your target on someone with little power or on someone with greater power?
LARA BAZELON I think she was a very traditional prosecutor. When she had a case to make against someone powerful or someone not powerful, she made it. When she could act in a way that was not going to get her on the wrong side of very powerful law enforcement of groups then she acted in accordance with that goal. And that's really no different than the vast majority of prosecutors. The problem for her is that she's saying she was different when she wasn't.
BROOKE GLADSTONE Lara, thank you very much.
LARA BAZELON Oh it's such a pleasure to talk to you.
BROOKE GLADSTONE Lara Bazelon is a law professor at the University of San Francisco School of Law.
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BROOKE GLADSTONE Coming up, how prosecutors replaced public defenders as heroes of the public imagination. This is On The Media.