For decades, state prosecutor lobbies have been effective in going beyond trying cases to influencing criminal justice policy, most recently gutting criminal justice reforms in a number of states. Only in the past 10 years or so have public defenders taken on a similar advocacy role beyond the courtroom, at least on the same scale. This hasn’t always resonated well with prosecutors and judges. And while public defenders had no means to retaliate against prosecutors for their activism, prosecutors and judges have lots of ways to retaliate against public defenders. Take, for example, a new case out of California, where prosecutors were at the forefront of the 1980s and 1990s movement toward draconian sentencing policies that the state is now rolling back.
Several weeks ago, Sajid Khan, a deputy alternate public defender in Santa Clara, published two posts on his personal blog about how protesters angry about the killing of George Floyd shouldn’t limit their outrage to police departments but should also consider the role prosecutors play in perpetuating racial bias and police brutality. Santa Clara County District Attorney Jeffrey Rosen responded in an email to staff. Rosen wrote that he found the posts to be threatening to his office. He responded by promising to file a whistleblower complaint against Khan, which he hoped would spawn an investigation.
Khan’s posts are suffused with the fury and indignation of an activist. “In this moment, we appropriately unleash our anger and frustration at police departments across the country for their continued brutality, violence and harassment imposed upon black people,” he wrote in one post. “But to best honor George Floyd, we should fire our very righteous outrage, fury and ire at District Attorney’s offices too.” To emphasize that DAs should be protested, he included a map of a planned protest route, which included the police station, courthouse and the DA’s office.
In the other post Rosen cited, Khan laments a pattern he says he has seen over and over: a police killing, then protests, then promises for reform that don’t lead anywhere. “No more trying to repair the irreparable,” he writes, “We need to tear and shut this s--- down and start over.”
The language Khan used is certainly harsh and often profane. And he conceded in a phone interview that though head public defender Mollie O’Neal opposes the complaint and absolutely backs his right to speech, she did tell Khan that his rhetoric may have been unnecessarily strident. But "I don’t think any reasonable person would think that I’m calling for violence against any person,” Khan says. “The language was metaphorical.” Indeed, all of his language is fairly standard among activists. “Tear it down” is clearly referring to the system itself, not to individual buildings. The verb “fire” clearly to refers to “very righteous outrage, fury and ire,” not bullets or flames.
But in his email to DA staff, Rosen wrote that Khan’s posts “aimed to incite anger and destruction toward us” and “endangered the safety of everyone” in the office. He cited the map Khan posted, said some support staff had to go home early out of concern for their safety and said he was forced to close off portions of the DA’s office to the public. Rosen wrote, “I will never stand by while anyone threatens our staff,” and added that he’d be filing a whistleblower complaint to “initiate a formal county investigation into this misconduct.”
Rosen “could have simply stated his opinion — just objected to what Sajid wrote and explained why he thought it was wrong," says Khan’s attorney, Charles Gerstein, of the legal advocacy group Civil Rights Corps. "Instead, he called Sajid’s boss, threatened state consequences and appears to have initiated a legal process that could result in discipline, termination or criminal charges. That’s clearly retaliation, and it’s a violation of Sajid’s First Amendment rights.”
It also seems like an odd use of a whistleblower law. These laws are intended to facilitate reporting misconduct by powerful actors while shielding the lower-ranking whistleblowers from retaliation. Instead Rosen, the highest-ranking law enforcement official in the county, is using the law to seek retaliation against a lower-ranking county employee.
A spokesman for Rosen’s office said the office had no comment on the status of the whistleblower complaint. Finally, in response to my queries, Rosen’s office released this statement:
From DA Jeff Rosen: “Dissent is American. A county employee exhorting people during mass protests to “tear this $&&@ down by any means necessary” and other similar language accompanied by a map may encourage spirited debate, but it also has serious safety implications for county employees and others. To anyone who wants peaceful and powerful change -- we agree. We have been reforming the system from within for years. We are looking far and wide for good ideas to help us try to make the criminal justice system more equitable. We are already rolling out new reforms. Join us.”
Rosen’s spokesman also directed me to an op-ed by several black prosecutors who objected to Khan’s assertion that prosecutors contribute to the oppression of black people and “rob black people of their humanity.”
Oddly, even Khan’s own union did not back him up. That’s likely because in Santa Clara, the same union represents both prosecutors and public defenders. In a letter to members, the Santa Clara Government attorneys association chastised Khan for making prosecutors feel unsafe, and concluded, "Language is a powerful tool, and we are gifted artisans. We have an obligation when expressing ourselves to respect that power; otherwise we risk inciting unintended consequences.”
But since Rosen’s email, the head of the Silicon Valley NAACP has written a letter supporting Khan, as have Khan’s supervisor, O’Neal, and more than 90 of Khan’s public defender colleagues.
This also isn’t the first time that Rosen — who describes himself as a reformer but who critics say has a mixed record on that front — has taken action against a critic. Last year, his office filed criminal charges against Susan Bassi, an independent journalist and persistent critic, for allegedly taking photographs inside the county courthouse — a violation of court policy but not of any state or local law. He also filed a broad subpoena demanding months of Bassi’s phone records, her phone’s GPS data and her Internet search history. He also claimed in a court filing that Bassi was “escalating behavior” and posed a threat to his physical safety.
Gerstein says Khan is merely the latest public defender to face retaliation for his advocacy. “We’ve represented public defenders all over the country who face repercussions for speaking out on these issues,” says Gerstein. His organization represented Dean Beer and Keisha Hudson, formerly the top two public defenders in Montgomery County, Pa., who were fired this year for submitting an amicus brief to the Pennsylvania State Supreme Court that criticized how the county handles bail. Gerstein points to other recent examples in Galveston and San Angelo, Tex.
Khan says he’ll continue to speak out, despite Rosen’s response. His one fear is that prosecutors could potentially retaliate against his clients with harsher charges or less favorable plea bargains. “I’ve been a lawyer at that courthouse for 12 years,” he says. “I’ve tried more than 70 cases. I get along with the deputy DAs and can separate my work from my activism. I’d hope that the DA’s office wouldn’t take their anger with me out on my clients. But that they even have the power to do something like that really only proves my point. This is a broken system.”
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