My View: The War against Public Defenders Continues in California

Santa Clara DA Jeff Rosen

First Yolo County DA Jeff Reisig launched an attack on Public Defender Tracie Olson for comments she made in an interview, where she cited reliable jail data to point out that 25 percent of the jail population was Black in a county where Blacks make up just three percent of the population.

On Friday afternoon, Washington Post Columnist Radley Balko published a column reporting, “California DA threatens whistleblower complaint against public defender over protest blog posts.”

At issue was a column that Santa Clara Deputy Public Defender Sajid Khan published on his own blog, but also submitted to the Vanguard for republication on June 3.

In the column, he argued that, in addition to unleashing “our anger and frustration at police departments across the country for their continued brutality, violence and harassment imposed upon black people,” that in order to “best honor George Floyd” we should “fire our very righteous outrage, fury and ire at District Attorney’s offices too.”

As he pointed out, “it is the DA’s office that is responsible for prosecuting those police crimes or at the very least not endorsing that callous and illegal behavior by using the fruits of those unlawful police intrusions as part of their prosecutions.”

The original publication also included a map.  We choose to use the front entrance of the DA’s office for our image.

For Santa Clara DA Jeff Rosen, he responded to his staff with an email, arguing that he found the posts threatening to his office and he has filed a whistleblower complaint against Khan, apparently in hope of spawning an investigation.

I met Sajid Khan a few years ago, as he has a well-regarded periodic podcast he does with his colleague UC Davis Graduate Avi Singh, called “Aider and Abettor.”

Rosen himself, prior to the recent progressive DA wave, might have been regarded as a reformer.  His office received awards from the Northern California Innocence Project because they created, in partnership with the NCIP housed at Santa Clara University, a state of the art Conviction Integrity Unit.

On June 8, following the column by Mr. Khan, Jeff Rosen sent an email to staff.

He wrote: “By doing so, he endangered the safety of everyone working in both the East and West Wings of this building. We acted immediately through our Bureau of Investigation to secure the building and take steps to protect everyone’s safety.

“Due to these comments, some support staff went home early, restricting our ability to serve the public. We had to divert precious time, resources, and personnel to address this threat. Our public reception area and the entrance to the Victims Services Unit were restricted and guarded. Sections of the East Wing were closed as was the Re-entry Center to protect staff and the public.

“This is unacceptable. Everyone is entitled to their opinions, but endangering the public servants of this Office, and other government agencies, is unprofessional, immature and dangerous.”

In conclusion, Jeff 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.”

Keep in mind, as far as we can tell, this was in response to the column, not to a specific issue that arose from the column.

In a letter from the Rev. Jethroe Moore, President of the Slicon Valley NCAAP, he noted, “It has come to my attention that it is your intention to file a formal whistleblower complaint against Deputy Alternate Defender Sajid Khan for editorial comments he made that you unreasonably believed were incendiary and threatening to the District Attorney Office.”

He said, “Rather than file complaints for a nonevent, it is time for District Attorney’s Office to confront, speak out against, and immediately eliminate these perceptions. It is time for your office and other DA offices to realize their role in perpetuating racial disparities in our criminal justice system.

“I invite you to take action to end the racial disparity in this county,” Moore said.

Moore noted, “According to a data published by your office that while representing 2% of the population of Santa Clara County black people are 12% of the people your office sends to prison. In stark contrast to white people who represent 21% of the people sent to prison but represent 34% of the population. For black people it represents six times their percentage of the population while for white people its sixth tenths of the total population.”

In a response from Charlie Gerstein of Civil Rights Corps, he points out that “the entry does not mention you specifically” and “does not mention—let alone incite, or even encourage—violence of any kind; and does not contain any instructions to do anything at all other than ‘honk.’”

He pointed out, “Your letter predictably reached a large audience. Since then, Khan has had to explain to his friends and colleagues that he did not, in fact, threaten your office.”

As he points out, “Khan did not ‘threaten’ your staff or ‘incite . . . destruction.’ He criticized district attorneys across the country for systematic oppression of Black people, a criticism that is supported by statistical evidence.”

And notes: “We all have better things to do with our time right now than fight about this in court.”  And he noted that Rosen “could have simply stated his opinion — just objected to what Sajid wrote and explained why he thought it was wrong.”

But that’s not what he did.  “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.”

Rosen responded on June 11 to the Reverend’s letter.

He said, “I respect Mr. Khan’s right to express his opinions about this Office, indeed, I will protect his constitutional rights as they go to the very core of my function as District Attorney.”

He said, however, “I do not respect the indictment and violent tone with which he expressed those opinions.”

He went to note that his office in response crafted a “comprehensive security plan” and his “employees were frightened for their personal safety.”

As Radley Balko notes in his column, “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.”

Truth be told, this seems like a terrible response by an elected district attorney.  Nothing happened.  Not only did Khan not do anything other than to advocate for honking, but the DA’s office put itself into turmoil over something that had no tangible impact and then filed a formal complaint that seems like a misuse of government authority.

Just as with Tracie Olson earlier this week, public defenders across the state rushed to Sajid Khan’s defense.

Alameda Public Defender Brendon Woods wrote: “This DA really considered filing a whistle blower complaint against a defender of color for speaking the truth. The DA was afraid for his staff’s safety? Really? We may have our first DA Karen. We support  @thesajidakhan keep speaking #TruthToPower #BLM.”

He added, “We are ready. We are on the right side of history. We’ve spent our lives fighting for Black & Brown people abused by the criminal punishment system. We’ve been fighting to get people out of cages. We are ready.”

Scott Hechinger in NY added, “OUTRAGEOUS: A Muslim public defender in Santa Clara calls for prosecutorial accountability. The DA treats it like a bomb threat, evacuates office, & threatens a whistleblower complaint. A deliberate overreaction to silence defender activism. It won’t work.”

Tracie Olson tweeted, “Today is Juneteenth. All I want to say is that Black Lives Matter. I wish that’s what the conversation could be about – and only that.”

Unfortunately what we are seeing is that with the nationwide pressure on to reform the system, the DAs who are guardians apparently of the old order are threatened.  But they are on the wrong side of history and the times have changed—no longer can they threaten and intimidate, using their unequal bully pulpit to silence the opposition.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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17 Comments

      1. Keith Olsen

        I find a lot of things ridiculous these days.

        For instance, a college football coach wears an OAN t-shirt while fishing and now his job is in jeopardy?

        So does that make it ““The War against football coaches”?

        I find it ridiculous that a sandwich store owner could lose his business and livelihood likely because a corporation feared backlash from BLM.

        “War on sandwich shops”?

        1. Keith Olsen

          Being recently we’re seeing free speech squashed all over the country with in many cases people losing their jobs and businesses I find it interesting that you are now up in arms about this.

  1. Keith Olsen

    The original publication also included a map.  We choose to use the front entrance of the DA’s office for our image.

    Why did you choose not to use the map?  Did you think that was over the top?

    Why didn’t you also include these lines from the original piece?

    So yes, let’s rally at city halls and at the local police station. But don’t forget to make it loud and clear to our DA’s offices that black lives matter.

    So be mad at the police, but be even madder at the DA’s offices that perpetuate and protect them.

    Do you not believe DA Jeff Rosen?

    “employees were frightened for their personal safety.”

    1. David Greenwald

      I didn’t put the map because it didn’t seem relevant to a readership mostly based well outside the area.

      In terms of the reaction, I think they overreacted.  Nothing actually happened.  You go back to the 20s Supreme Court cases on free speech which I think are too limiting, even there you had to have a clear and present danger of imminent public safety risk to ban free speech.  The fact that nothing happened here undermines the belief that there was a real danger.

      Finally you have the whistleblower complaint that doesn’t even seem to cover this kind of situation.  Tomorrow there will be a publication on what Reisig should have said to Tracie Olson, what Rosen should have done was express concern about the tone of the piece and use that as a launching point for building understanding.

  2. John Hobbs

    Once again a right winger needs reminding that free speech means he cans say what he likes, it does not protect him from the consequences of that speech, nor is a third party obliged to print it.

    1. Jeff Boone

      LOL.

      Once again the left winger needs to be reminded that free speech means speech that disagrees with his politics and speech that triggers him.

      And he also needs to be reminded that everyone in this country IS actually protected from consequences of speaking his/her mind.  Otherwise speech would not be free.

      Lastly, I agree that no third party should be obligated to print it.  Including the NFL should be be obligated to allow its players to take a knee during the National Anthem.

       

      1. John Hobbs

        Boone is obviously not a lawyer, nor a grammarian. The NFL, or at least it’s commissioner has decided that it was wrong to stifle free expression of grievances  and has apologized and corrected his course, something many other top executives have done in recent days.

         

        1. Jeff Boone

          Hobbs:

          nor is a third party obliged to print it

          So you would support the NFL as a private company forbidding the “printing” of the players speech in the form of them taking a knee to disrespect the country they are blessed to live in and make their millions?  Do I have that correctly?  Because it is impossible to tell as you seem to be making two opposing arguments at the same time.

          Obviously Hobbs is not a logician.

        2. John Hobbs

          “So you would support the NFL as a private company forbidding the “printing” of the players speech in the form of them taking a knee…”

          Nope, I’d boycott them,as I always said. If I was cynical, I’d say Gooddell’s reversal was due less to a change of conscience and more to a realization that the majority of the talent people pay to see is not Caucasian in ethnicity and to continue to ignore and demean those players of color was not wise leadership.

          “to disrespect the country they are blessed to live in and make their millions?”

          No, to sound the alarm that if heeded years ago might have saved the country much of the social and material damage we are now seeing.

  3. Keith Olsen

    Once again a right left winger needs reminding that free speech means he cans say what he likes, it does not protect him from the consequences of that speech, nor is a third party obliged to print it.

    Shouldn’t that also apply to this article?

     

  4. Jeff Boone

    “At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.”

    Abraham Lincoln, Jan, 1838

    Lincoln was was denouncing mob violence which would lead to chaos, provoking the public to demand law and order, which would be provided by an ambitious leader who would rule tyrannically.

    Lincoln nor any President from the time before modern TV and Internet media could have anticipated the growing capability for people to be manipulated into become part of the mob and then how the mob could use the same system to organize and then harass and destroy all those that get in its way.  Given this we should be even more impressed with this warning from almost 200 years ago.

    Those supporting the political establishment, both the liberal Democrats and establishment Republicans, are making a YUGE mistake here.  They are tacitly and explicitly supporting the mob because they hate Trump.  Certainly money plays a part… liberals tend to gravitate to careers that feed off the base production of the private economy.  They support high taxes and the general taking of other’s earned wealth.  Trump threatens their gravy train.  The establishment Republicans are either unable to get over their media-fired dislike of Trump or else they also have a money connection that is threatened by Trump policies.   The march to a liberal global new world order creates them a bigger money-making sandbox for both of these cohorts.  And because it is a global stake, they have expanded their reach beyond the country.  The protests, riots and looting have spread like a cancer to other countries.  How telling is that?

    The problem is that not all means can justify and end.  The US political process has always been flawed while being the best ever designed.  The recent actions by the Supreme Court that favor the interest of Democrats is a great example.  No protests or riots were required.  It was just the system working.  Brilliant professionals incorporating a dose of rational consideration for societal progress along with a large helping of actual legal consideration.

    But instead we allow a few videos to inflame our angry passions to burn the place down.

    My biggest disappointment in all supporting the burning… including those that tacitly support it while disingenuously claiming they don’t…  is that I cannot see them loving their children more than they love their money and politics.

    If you don’t like your house then renovate it or move to a new house…. how will your children survive if you burn it down?

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