By David M. Greenwald
When President-elect Joe Biden surprisingly named California Attorney General Xavier Becerra to the post of Secretary of Health and Human Services, assuming confirmation by Senate next month—by no means a certainty, the appointment opens up the position of AG for appointment by Governor Gavin Newsom.
While Becerra made a name for himself over the past four years, challenging the Trump administration on immigration and environmental legislation, he has drawn heavy criticism from the justice reform community, who believe he has been soft on police misconduct and holding prosecutors accountable.
Governor Newsom is under pressure to name a reform-minded AG, one who can take on critical issues like police accountability as well as an array of issues progressive prosecutors across the state have addressed from bail reform to decarceration.
The governor has a lot of options—the question is which way he will go. The Vanguard has learned this week that Governor Newsom has reached out to the California Legislative Black Caucus (CLBC) for a recommendation for AG—it is not clear if that means he is looking to appoint a Black appointee to the post, or if he is also reaching out to a variety of other groups.
While the Black Caucus expects to interview potential candidates this week, according to one source, the California Association of Black Lawyers has made three recommendations to the CLBC—Contra Costa DA and former Judge Diana Becton, Paul Henderson of the SF Department of Police Accountability, and Terry Wiley, who serves as an Assistant DA in Alameda County and is currently the third ranking prosecutor in that office.
While Paul Henderson is not a name that is likely to jump out to many voters across the state, he has a long and varied background in San Francisco. He served 16 years as a prosecutor in the San Francisco DA’s office, including the last seven years as Chief of Administration under Kamala Harris until 2011. He then moved to Deputy Chief of Staff of Public Safety under Mayor Ed Lee from 2011 until 2017, when the mayor died in office.
Since 2017, he has served as the Executive Director of the San Francisco DPA (Department of Police Accountability).
Henderson also has a national platform as a legal news analyst, where he has appeared as a commentator on CNN, MSNBC, CBS, and Fox News.
The Vanguard recently sat down with Paul Henderson in an interview over Zoom.
On the current AG’s office, he said, “I think the biggest problem is not having them take a more aggressive role about police reform when it is such the issue that I think people want from that agency, communities want reform.” He added, “I would argue that many of the leaders in many of these police departments want reform as well.
“If you talk to the chief, they want reform too. And they are challenged with the political pressure. They are challenged with budgets. They are challenged with internal affair restrictions. And it’s the state’s obligation to be doing reform at a level that is reflective of best practices. Flat out, that’s their obligation. That’s what they should be doing.”
He argued, “[A]bsolutely in my opinion, the number one missed mandate for the biggest obligation, or the most collaring mandate for the Attorney General’s Office right now, is to take up and to address police reform in a meaningful way that both reflects best practices.”
One example of the criticism that AG Becerra has received has been on the shooting of Sean Monterrosa in Vallejo. The DA of Solano County has attempted to recuse herself but the AG’s office has pushed back saying outside of a clear conflict of interest, it is on the DA to investigate.
Henderson responded, “I think that the AG’s office has an obligation to be stepping in and being more proactive.”
He explained that “this is not the first time that we’ve seen that. I would say it is the absolute role of the Attorney General’s Office to be acting more proactively in those situations. Specifically with these officer-involved shootings that I think counties and communities are sending a clear message that the subjective discretion allowed to law enforcement in evaluating those cases has to change.”
Henderson continued, saying “that doesn’t mean that we don’t respect policing, but it does mean the objective evaluation of the use of lethal force has to be a real objective evaluation.”
Paul Henderson in his role with the DPA noted that he has challenges in his own agency, because, without a specific complaint, he doesn’t have jurisdiction unless there is a specific complaint about the case.
But that has changed. “The new standard is for San Francisco, if there is an officer-involved shooting, period, jurisdiction is automatic.” That means that now he can have his own lawyers, investigators at the scene within 20 minutes of an officer-involved shooting, on the “scene conducting their own investigation at the same time that the cops are doing their evaluation.
“And it really boils down to honesty, and this is the cornerstone of it, public trust,” Henderson explained. “What is your public trust and how you define it. Either you have it or you don’t. And if you don’t have it, here’s how you build it.
“That independent evaluation really, I believe, can be transformative and that doesn’t necessarily change. It’s not a big new function for the Attorney General’s Office to have experts in this area evaluating independently, how transactions like that take life and have an opinion about it.”
The important point: “If they don’t trust the process, not just from the police, but they don’t trust that the District Attorney and the prosecutor isn’t working in conjunction, because of the pressure that the mayor is putting on them.”
Talking with folks who have worked with Henderson and the DPA, however, there are criticisms about the lack of transparency, accountability and the willingness for agencies to release documents under new laws like SB 1421, which were supposed to provide for additional layers of accountability and transparency.
“But I will say that one of the things that they are talking about is how difficult and challenging the 1421 process is. And I agree with them. If they are not getting the information as quickly as they want it or need it or want to develop it … but no one is,” he said. “I will say the challenges of the 1421 releases are very tricky at a macro level because the interpretation that I have of interpreting what’s discoverable.”
Asked if he would look to implement a series of reforms on criminal justice matters along the lines of George Gascón in Los Angeles and Chesa Boudin in San Francisco.
While he never directly addressed the entirety of their agenda, he indicated that he would love to coordinate “with legislators in a way to craft legislation, to come up with solution so that we don’t have to have individual fights over and over and over.”
He complained that “we have not had a proactive Attorney General engaged at that level, advocating for those things and motivated to work with legislation and with broader communities to get that stuff done.”
He said, “We don’t want the Attorney General’s Office to be silent when there’s an initiative about bail reform. We don’t want the Attorney General’s Office working behind the scene to talk about certification of officers at a statewide level. We want an opinion reflective of race neutral outcomes for policing. And we demand that.”
One of the big questions is what Governor Newsom is looking for when he selects a new attorney general. If he is looking at police reform first and foremost, someone like Paul Henderson could emerge on that radar.
—David M. Greenwald reporting
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