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image: https://i.imgur.com/bUYG89k.jpg
disqus: rdsathene
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# Scrutinizing Candice Aiston's defense of California's self-proclaimed Top-Cop Kamala Harris

*“I’m not without sympathy for the additional pressures exerted on Harris because she is a black woman — after all, unlike \[Jill\] Filipovic, I am one too. But those sympathies do not eclipse the concern I have for the black women who bore the consequences of Harris’s prosecutorial misjudgment.” — [Briahna Gray](https://theintercept.com/2019/01/20/a-problem-for-kamala-harris-can-a-prosecutor-become-president-in-the-age-of-black-lives-matter/)*

Right-of-center and very-online-activist Candice N. Aiston recently wrote an apologia on behalf of career prosecutor, US Senator, and presidential candidate Kamala Harris. Aiston's central [thesis](https://medium.com/@candiceaiston/how-would-we-examine-kamala-harriss-record-if-we-trusted-women-c95432b95812) is that criticism of Harris's tenure as a prosecutor "is poisoned with misogyny — rooted in a deep mistrust of women seeking power." Does this hyperbolic claim stand up to scrutiny?

One of Aiston's first [assertions](https://medium.com/@candiceaiston/how-would-we-examine-kamala-harriss-record-if-we-trusted-women-c95432b95812) is that if Harris's detractors would do a "basic level of research", they would learn "how lawyers are ethically obligated to do their jobs." The latter part is true. Aiston, Harris, and myself all had to pass an examination entitled the Multistate Professional Responsibility Examination ([MPRE](http://www.ncbex.org/exams/mpre/)), which tests an attorney applicant's knowledge of the ethical rules of the profession. Additionally, there are state specific tests and continuing legal education requirements. Most lay persons are unaware of the ongoing proficiency requirements in ethics regulations that attorneys are subject to. Aiston relies on this to omit the very important fact that while attorneys in general are, as she says, "ethically obligated to do their jobs", that ***prosecutors, specifically, have additional duties.*** Some of these additional duties are listed in The American Bar Association (ABA) Model Rules of Professional Conduct (RPC) [Rule 3.8](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_8_special_responsibilities_of_a_prosecutor/) Special Responsibilities of a Prosecutor and in The State Bar of California (CalBar) California Rules of Professional Conduct (CRPC) [Rule 3.8](http://www.calbar.ca.gov/Portals/0/documents/rules/Rule_3.8-Exec_Summary-Redline.pdf) Special Responsibilities of a Prosecutor.

It is only through intentionally misrepresenting (i.e. omitting) the special duties of a prosecutor that Aiston can make a statement as irresponsible and disingenuous as this:

> "Harris’s record is complicated to analyze, because people do not understand the job she had. She was legally and ethically obligated to defend her client, which in many of these situations is the Department of Corrections."

While Harris was certainly ethically obligated to her client, she was equally ***obligated to disclose exculpatory evidence, and to seek remedies for wrongful convictions*** (*see* [CalBar CRPC](https://www.calbar.ca.gov/Portals/0/documents/rules/Rules-of-Professional-Conduct.pdf) 3.8(d) and 3.8(g)). To do otherwise wasn't just an ethical violation of her duties as an attorney, bus an affront to any principles of social justice and progressivism. We know that Harris [frequently](https://twitter.com/rdsathene/status/1273038592152125446) didn't fulfill her obligations under the CalBar CRPC, and that she often went to the extent of defending prosecutorial misconduct.

Perhaps the best examination of Harris's abject record in regards to prosecutorial misconduct comes from Professor Lara Bazalon. Her *New York Times* op-ed **["Kamala Harris Was Not a ‘Progressive Prosecutor’"](https://www.nytimes.com/2019/01/17/opinion/kamala-harris-criminal-justice.html)** provides a powerful basis for rejecting Aiston's arguments entirely. This is probably the reason Aiston doesn't mention Bazalon's work at all. Unlike Aiston, who practices probate law (e.g. wills, trusts, and estate planing), Bazalon is a former public defender, former director of the Loyola Law School Project for the Innocent, a current law professor, and an author. In other words, Bazalon is thoroughly versed in criminal law and an expert on prosecutors. Her [case against Harris](https://www.nytimes.com/2019/01/17/opinion/kamala-harris-criminal-justice.html) is iron-clad.

Like Lara Bazalon, Briahna Gray is also a lawyer. Gray's **[A Problem for Kamala Harris: Can a Prosecutor Become President in the Age of Black Lives Matter?](https://theintercept.com/2019/01/20/a-problem-for-kamala-harris-can-a-prosecutor-become-president-in-the-age-of-black-lives-matter/)** is written from her perspective of being both a woman of color and an attorney. Gray's piece looks at even more of Harris's liabilities than Bazalon's op-ed. Her thesis is a timely question given the high profile of the role law enforcement plays in oppressing the poor and persons of color.

One thing both women do masterfully is point to multiple examples of prosectors that have been implementing progressive policies and thereby attacking the racist and classist underpinning of the criminal justice system. This is in direct contrast to Aiston's assertion that:

> "Lawyers do not get to set policy against our client’s interest while defending them. In other situations, Harris’s viewpoint is that of a prosecutor who has a deep knowledge of and connection to the most victimized people in our culture…"

Moreover, Aiston provides no proof that Harris had any type of "deep knowlege", and she makes no attempt to compare Harris's record with that of other prosecutors. Aiston claims that critiques of Harris are the result of a shortcut and that the "shortcut is misogyny and that pattern is to not trust women". However, how can we characterize her wholesale erasure of cogent, carefully argued essays by other women as anything but a shortcut?

Worse still, Aiston goes to great lengths to perpetuate the myth that Harris's critics are, in her words, "[w]ealthy, white brogressives". While never mentioning Briahna Gray's name, Aiston shortened the title of Gray's article to omit "in the Age of Black Lives Matter" altogether when she mentions the piece. Aiston then attempts to discredit the article by asserting that the publication's owner might have had some tenuous links to unsavory individuals. All of this is an intellectually lazy means of avoiding the substantive arguments in Gray's piece. More to the point, for Aiston actually acknowledge, rather than erase, a woman of color and her essay is to concede that her carefully constructed "brogressives" narrative is false on its face.

Aiston proffers a quote from a *Vox* essay as a counterargument to Gray. Here, too, she is quite selective. The [same article](https://www.vox.com/future-perfect/2019/1/23/18184192/kamala-harris-president-campaign-criminal-justice-record), under the heading "Harris’s troubling record as attorney general", starts off like this:

>"Based on Harris’s record, supporters easily could have expected her to come into the California Department of Justice as attorney general and really shake things up. But that didn’t happen: Her office’s handling of over-incarceration, the death penalty, and wrongly incarcerated people were among the several issues in which Harris by and large maintained the status quo."

* * *

# **NOTE:** I do plan to finish this essay someday. However, I'm currently working on a difficult school expulsion case in ligitation, and preparing my syllabus for my fall 1L Contracts class at my law school. August 14, 2019.

* * *

### Top Cop POTUS?

Aiston claims that the question "\[c\]an a prosecutor be president?" is "designed to disqualify women candidates". However, this is precisely the question that anyone and everyone on the left, particularly as allies of [Black Lives Matter](https://www.latimes.com/opinion/op-ed/la-oe-taylor-blm-obama-20160726-snap-story.html), should be asking of any candidate, regardless of gender.

The last time a "top cop" (i.e. a State Attorney General) from the Democratic Party became President was in 1993. That individual unleashed a torrent of racist and nativist legislation and policies on the poor and persons of color including: [the Omnibus Crime Bill](https://www.thenation.com/article/hillary-clinton-does-not-deserve-black-peoples-votes/), [AEDPA, IIRAIRA](http://time.com/4312628/immigration-1996-laws/), IRCA, [PRWORA](https://www.thenation.com/article/hillary-clinton-does-not-deserve-black-peoples-votes/), and [Operation Gatekeeper](https://www.jacobinmag.com/2016/08/immigration-democrats-hillary-clinton-barack-obama/). One would hope that an informed electorate has learned from that abject experience.

### Harris does face sexism

Lara Bazelon sums this up:

https://twitter.com/larabazelon/status/1095800588749557760

> Lara Bazelon @larabazelon Feb 13 More
> Replying to @JamesJdcxc @jewels390 @JStephenClark
> My criticism of Harris' record is based on exactly that: her record. Are some ppl's attacks on Harris racist and sexist? Yes. Will some ppl's attacks on Klobuchar be sexist? Yes. Is that wrong? Emphatically, yes. And are record-based critiques important? Emphatically, yes.
>
Critiquing candidates based on any other than their record is unacceptable. I personally [have defended](https://twitter.com/rdsathene/status/1090461212905635840) Senator Harris from misogynist attacks online.

### Are all of Harris's Critics Bros?

Aiston's vitrol and invective reach a boiling point as she describes journalists that have done a stellar job [unearthing some very unerving footage](https://twitter.com/WalkerBragman/status/1089831581030797312) of Senator Harris discussing her policies. Aiston, a well-to-do white woman, rails against "out-of-touch wealthy white men" that merely shared the videos of Harris. If the speeches weren't problematic, why the anger towards those sharing them?

https://twitter.com/WalkerBragman/status/1089831581030797312

Centrists Democrats went to great lengths to claim that Harris had never prosecuted mothers under the truancy policy regime. They even went as far as to claim that [Snopes debunked](https://www.snopes.com/fact-check/kamala-harris-homeless-mother/) all accusations of prosecutions. However, that Snopes blogpost tacitly admits that Senator Kamala Harris prosecuted the woman in question (i.e. filed a criminal complaint), but later "dismiss[ed] the charges against the mother." However, Harris's office didn't just prosecute parents, [it obtained convictions](https://www.sfgate.com/news/article/S-F-cites-parents-of-chronically-truant-kids-3209547.php), giving them criminal records and all the attendant problems that come with that.


Aiston claims that "Harris’s diversion programs have helped thousands of people", but the truancy program was not a diversion program of any sort. In fairness, some of Harris's programs were helpful, but on balance, many experts on criminal justice (e.g. Bazalon)

***

https://www.nytimes.com/2019/01/17/opinion/kamala-harris-criminal-justice.html

https://www.cnbc.com/2019/02/01/twitter-has-suspended-suspected-troll-accounts-posting-anti-kamala-harris-content-.html

https://www.sfgate.com/bayarea/article/Judge-rips-Harris-office-for-hiding-problems-3263797.php

https://www.sfgate.com/news/article/S-F-cites-parents-of-chronically-truant-kids-3209547.php

[The Human Costs Of Kamala Harris’ War On Truancy](https://www.huffpost.com/entry/kamala-harris-truancy-arrests-2020-progressive-prosecutor_n_5c995789e4b0f7bfa1b57d2e)

[Kamala Harris prosecuted a mentally ill woman shot by SF police. The jury didn’t buy it. ](https://www.mercurynews.com/2019/09/11/as-d-a-kamala-harris-prosecuted-a-mentally-ill-woman-shot-by-police-the-jury-didnt-buy-it/)

https://www.latimes.com/local/political/la-me-ff-federal-judges-order-state-to-release-more-prisoners-20141114-story.html
quote from above link: https://twitter.com/rdsathene/status/1137375856261623808

https://web.archive.org/web/20100306214313/http://www.kamalaharris.org:80/issues/34


***