On March 24, 2017, U.S. Senator Kamala Harris (D-CA) announced her opposition to Supreme Court nominee Neal Gorsuch, saying on Twitter,
Judge Gorsuch has consistently valued narrow legalisms over real lives. I cannot support his nomination.https://t.co/ocDD7DvKnd
— Kamala Harris (@KamalaHarris) March 24, 2017
The link in the Tweet goes to an op-ed that Harris wrote for the San Francisco Chronicle. In that op-ed, Harris appeals to basic notions of justice which she maintains that Gorsuch lacks, and contrasts that with Supreme Court Thurgood Marshall who she claims inspired her own career as a lawyer,
Supreme Court Justice Thurgood Marshall, the civil rights hero who argued Brown and inspired my career, once bluntly defined his judicial philosophy, saying, “You do what you think is right and let the law catch up.” In simple terms, Justice Marshall appreciated that the ultimate goal of the law was justice. By stark contrast, Judge Gorsuch has consistently valued narrow legalisms over real lives. I must do what’s right. I cannot support his nomination.
You do what you think is right and let the law catch up. So let’s take a minute to ponder Harris’ moral compass.
In 2013, a man in California was charged with multiple counts of molesting a young girl. When the defendant turned down a plea bargain, prosecutor Robert Murray upped the ante–he told the man’s lawyer that he was thinking about refiling the case and alleging that the molestation involved penetration which would carry a much longer potential prison sentence.
Murray knew there was no evidence for this, but gave the defendant’s lawyer a translated transcript of a police interview with the defendant (the defendant spoke Spanish) which included this section implying that the defendant had penetrated the alleged victim,
[DETECTIVE]: You’re so guilty you child molester.
[DEFENDANT]: I know. I’m just glad she’s not pregnant like her mother.
The defense attorney then advised his client that this admission could be used on its own to support a charge of penetration and that the defendant should accept the plea agreement.
But those lines were never said by the defendant. Murray fabricated the lines and inserted into the transcript in an attempt to pressure the defendant into accepting the plea bargain. The judge in the case held an evidentiary hearing about the fabricated confession,
That evidentiary hearing was held on December 17, 2013. At the hearing, Murray testified the lines were added as a joke, but admitted he did not have a joking relationship with Hinman and had not made such jokes in the past. Murray also testified he was aware [defendant’s attorney] Hinman was trying to settle the case, and he had meant to inform him of the fabrication but had not done so until October 30, 2013, despite receiving Hinman’s e-mail about the transcript earlier that day and having seen Hinman in court on October 28, 2013. Murray also testified the October 28 appearance was the day
defendant’s trial was set to begin, but he had no expectation the trial was going to actually begin that day.
The judge didn’t buy it and dismissed the case altogether writing that (emphasis added),
The court acknowledges that each case must be considered on its own merits and that there is no bright line test or set of factors the court must use in deciding an issue of this type. The court has considered factors that include: (1) The very serious nature of the crimes charged, the evidence of those crimes and the sensitive nature of the victims alleged in a case of this type, (2) the experience of the prosecutor, (3) the burdens that exist for this case to ever end in a settlement that can be seen as clear from the taint of improper conduct, (3) [sic: 4] and if the case [does] not settle, but goes to trial, the burdens that exist for it to end in that manner, clear from the taint of the improper conduct of the prosecution. The court does not believe that it can tolerate such outrageous conduct that results in the deprivation of basic fundamental constitutional rights that are designed to provide basic fairness.
Enter Kalama Harris, who was then California Attorney General. Harris, following Marshall’s call to do the right thing, decided to appeal the judge’s decision. After all, a prosecutor manufacturing a false confession by a defendant is a mere “legalism.” The state’s appeal, in fact, argued that only physical coercion of a false confession would ever rise to prosecutorial misconduct severe enough to allow a judge to dismiss a case. Anything less than physical coercion is apparently fair game in Harris’ twisted mind.
The 9th Circuit Court was having none of it. In its unanimous decision, the appeals court wrote,
Indeed, there is simply no support for the People’s contention that an act must involve some form of physical brutality in order to support a sanction of dismissal. Meanwhile, there is ample support for defendant’s contention that egregious violations of a defendant’s constitutional rights are sufficient to establish outrageous government misconduct. . . . Put differently, while some forms of brutality may be sufficient to violate a defendant’s right to
substantive due process, ample case law supports the conclusion that such brutality is not necessary to establish outrageous government misconduct.Here, the trial court found Murray deliberately altered an interrogation transcript to include a confession that could be used to justify charges carrying a life sentence, and he distributed it to defense counsel during a period of time when Murray knew defense counsel was trying to persuade defendant to settle the case. Further, Murray did not reveal the alterations until nine days later, and only then when he was directly confronted about the fabricated lines by defense counsel. This is egregious misconduct and, as is shown below, it directly interfered with defendant’s attorney-client relationship. Because Murray clearly engaged in egregious misconduct that prejudiced defendant’s constitutional right to counsel, the trial court was correct in finding Murray’s actions were outrageous and conscience shocking in a constitutional sense.
Judges who care about legalisms are the only thing that keep the monsters like Harris at bay.
