By David M. Greenwald
The Sacramento Bee headline caught my eye: “He sued the Trump administration over 100 times. Now Biden wants Xavier Becerra in his Cabinet”—will that make it difficult to confirm him to a position that has little to do with his job description in California?
The New York Times reported that he was a surprise choice, and only became the frontrunner in the past few days. There had been some speculation that he might be a top choice for AG. After all, the Biden administration is looking for high profile Latinos and he made his name defending in court things like the Affordable Care Act, environmental protections and opposing Trump administration immigration policies.
But many reformers are glad to see him potentially heading to Washington—not because they see him as effectively advocating for criminal justice reform, but rather because he did not.
Matt Ferner from the Appeal tweeted yesterday: “Thank you Xavier Becerra for your service, we will remember you for your complete & utter failure to investigate let alone charge corrupt cops & prosecutors, letting dirty cops retire w full benefits, & misconduct to flourish under your leadership.”
John Hamasaki, a San Francisco Police Commissioner likewise tweeted: “Great news for California! Becerra fought relentlessly to protect violent and abusive police from accountability. We are safer with him in DC.”
Becerra’s record on police killing was not good. Last summer the Solano County DA, Krishna Abrams, recognizing the lack of public trust and potential bias of her office, asked the AG’s office to investigate the shooting of Sean Monterrosa where police mistook a hammer in his pocket for a gun.
However, the AG’s office declined: “Absent a conflict of interest, an abuse of discretion or other exceptional circumstances, the Department of Justice does not assume responsibility for local investigations or prosecutions typically handled by local authorities.
This was not an isolated incident.
In 2019, Becerra and his office announced that they would not seek criminal charges in the high profile and controversial police shooting in Sacramento of Stephon Clark.
“This loss of life is a tragedy, and it is the kind of tragedy we have endured far too many times across our state and nation,” said Attorney General Becerra in a release.
The statement added, “After extensively reviewing the record, we found that the evidence did not support filing criminal charges against the officers involved in the shooting. We approached our independent investigation with an open mind, and our decision-making was driven by one factor alone: the evidence. The death of Stephon Alonzo Clark weighs heavily on our community and on our hearts—and it is why we must continue our work with law enforcement agencies in the state to build on best practices and strengthen trust between peace officers and the communities they are sworn to protect.”
The AG’s office also in 2019 dragged its feet on following SB 1421. His office, despite a court ruling against the police union challenge, refused to release records of officer-involved shootings.
This spawned ACLU staff attorney Kathleen Guneratne to say, “If Becerra wants others to follow the law, he should start by following it himself. The attorney general should provide leadership to law enforcement by clearing the way for the release of his department’s own records and encouraging other police agencies to follow suit. Families have waited years for access to the investigations into the killing of their loved ones, in hopes of some answers.”
And by far my biggest problem with Becerra—like Kamala Harris before him—is the failure to hold authorities in Orange County accountable in multiple scandals.
In 2019, state prosecutors closed their investigation into the five-year-long informant scandal “with no prosecutions or punishments against deputies.”
The case was serious enough that the local judge, Judge Goethals, removed the DA’s office from prosecuting the case of Scott Dekraai who shot and killed eight people in 2011 in Seal Beach, and ultimately removed the death penalty from the case due to official misconduct.
In 2017 Judge Goethals issued the ruling in clear, unequivocal terms.
“In this court’s view, these truths matter,” he said. “To ensure the ongoing integrity of the justice system, courts must demand that everyone follow the same set of rules.”
The judge stated plainly: “This court believes that maintaining the integrity and viability of Orange County’s criminal justice system remains of paramount importance.”
We have long been critical of the AG’s failure to properly oversee either the sheriff’s department or the DA’s office.
Over the last five years, a series of evidentiary hearings revealed a coordinated effort to get inmates to snitch on other inmates.
Like many other scandals, the DA’s office and the sheriff then compounded their problems—instead of working to comply with the court’s lawful orders or working to correct “the systemic problems,” the members of the prosecution team according to the judge “chose to either deny, or ignore, these glaring illegalities.”
The sheriff and DA not only ignored orders, but continually downplayed the severity of the conduct.
Judge Goethals writes, “Sheriffs’ sworn personnel gave false and/or intentionally misleading testimony regarding the existence of relevant jail records. The evidence proves the existence at relevant times of voluminous discoverable data bases created and maintained by OCSD sworn personnel.”
Orange County Sheriff Sandra Hutchens testified and “acknowledged at least some of her Department’s discovery failures in this case and apologized to the court for them.”
In his conclusion, the judge writes, “During her testimony the Sheriff herself offered no explanation as to how this situation could exist so many years after this court issued its first discovery order.”
And yet nothing from AG Becerra.
If Becerra gets affirmed, that gives Gavin Newsom two critical appointments, one to replace Senator Kamala Harris and one to replace AG Becerra. We will see if the governor puts a reformer into the position, or someone more like Becerra, who himself was appointed by Governor Brown to fill Kamala Harris’ office when she was elected senator.
—David M. Greenwald reporting
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