Zisser: Can a public defender be district attorney?

Can a public defender be a district attorney? I am not endorsing any particular candidate. And each of the candidates for Santa Clara County DA has his strengths and weaknesses. I have met two of the candidates once or twice each. But this essential question has been floating around about whether one of the candidates, Sajid Khan, even crosses a basic threshold of eligibility because he is a public defender.

Can a public defender be a Supreme Court justice? Thankfully, enough U.S. senators and a president all recently agreed that this is a valuable perspective to bring to the court.

Focusing on constitutional rights

I worked for a public defender-turned-district-attorney in San Francisco. Sadly, that DA is now facing a well-funded recall effort. Is Chesa Boudin perfect? Absolutely not. He was at times more progressive on police accountability than I was and, at other times, less progressive. Same regarding diversion for lower-level crimes.

But does he understand constitutional rights? Absolutely. That was his business. I know the cliché about public defenders doing anything and everything they can to “get their clients off.” But that is not the job of a public defender. Protecting constitutional rights is the job of public defenders. A public defender can spot a case built on problematic searches, questionable Miranda warnings and testimony from officers who lack credibility. A public defender is trained on ensuring excessive bail is not imposed and poor people aren’t incarcerated simply because of their poverty.

Police accountability

A public defender would never demonize or demean the victim of an officer-involved shooting whom police pursued because of an erroneous identification of that victim as the suspect in a separate shooting. The current DA’s administration did this, going out of its way to discuss at length the young victim’s totally irrelevant and generally benign criminal history, as well as her tattoos and her genitals—yes, her genitals.

The DA’s office goes out of its way to exonerate and even praise officers who shoot people. The DA’s decision to exonerate officers, which is not its mandate, creates a perception of bias because the appropriate task is simply to apply the correct legal standard of whether there is enough evidence to prove a crime beyond a reasonable doubt.

Public safety

Can a public defender care about crime? Will he prosecute crimes? Certainly the recall effort in San Francisco portrays DA Boudin as soft on crime.

My first experience in the legal field was as an undergraduate intern in the very office where Sajid Khan works. I became a civil rights lawyer, the professional cousin to public defenders.

My family has been directly impacted by the worst kind of violence, and I long considered being a prosecutor. Communities of color tend to be the most impacted by violence and also tend to hold the most nuanced views on simultaneously needing police presence to combat violence and wishing to prevent and address police overreach and abuse. You can be both a strong advocate for constitutional rights and committed to ensuring public safety.

A check on extraordinary power

Why do some internal affairs units have a civilian oversight professional at the helm? Why do we have civilians at the head of the U.S. Department of Defense and as the bosses of police chiefs? At its best, leadership can serve as a check on powerful institutions heavily populated by people trained in a singular goal and with enormous power.

The DA’s office holds extraordinary power, making decisions about whom to try to jail, imprison, label a felon with all the collateral consequences that flow therefrom, place on a registry for years or decades, or subject to months or years of court procedures. The DA’s job is not just to combat crime. As an attorney and as the primary law enforcement official in a county, the DA must also be acutely attuned to the harms that his office’s power can cause.

Systemic change

Yes, in an adversarial process, defense attorneys are supposed to serve as checks on DA overreach, to seek dismissal of cases built on constitutionally infirm evidence, to advocate against excessive bail. But that’s one case at a time. Leadership can set a tone, make cultural and systemic change and deinstitutionalize outdated and harmful practices.

But that kind of change takes time. And a premature recall effort can disrupt that change process.

So if there is any lesson to be learned from DA Boudin’s experience, it’s not that we should not elect public defenders into office as DA. It’s that we should give them enough time to channel their experience as advocates for constitutional rights into the complicated work of pursuing public safety and addressing violence without ever compromising our foundational values.

So can a public defender be a district attorney? In the era of reimagining public safety—of reckoning with the history and ongoing reality of systemic racism in the criminal justice system—public defenders, civil rights attorneys and community organizers are precisely the people we need leading these seemingly unmovable institutions.

San José Spotlight columnist Aaron B. Zisser is Interim Executive Director of the Oakland Community Police Review Agency and the former San Jose Independent Police Auditor. He previously worked as an attorney with the Civil Rights Division of the U.S. Department of Justice and a consultant to Bay Area police and jail oversight entities. His opinions are his own. His columns appear every first Friday of the month. Contact Aaron at [email protected].