As 2017 drew to a close, I knew there was a long tradition of traditional chief prosecutors coming into office and firing people after their elections. When they did, it was considered normal and okay, regardless of their motivations. Arlen Specter, the last Republican Philly DA, became DA at thirty-five, in 1966, and was rumored to have dispatched every Democrat from his office within a few days of starting his term. That was one approach. Ed Rendell, who became DA at thirty-three, in 1978, required every single attorney in the office to resign first, then to reapply and explain in writing their worth. He told the press he ultimately discharged about 25 percent of personnel after reapplication, no doubt after putting the other 75 percent through sleepless hell in the process.
When I was sworn in as DA at fifty-six, after having known so many assistant district attorneys—some for thirty years—I had an advantage over former DAs Specter and Rendell. Through the decades, I had handled and tried countless cases for the defense that the ADAs in the office were prosecuting. The best ADAs had shown their worth when my client and I were powerless, when they had no idea that I might be their boss. Some ADAs had proved their exceptional talent, professionalism, and moral compass repeatedly. Others were unexceptional but competent and fair. One lied to me and to the judge so often in a case, she couldn’t keep straight the last lie she told. Another liked to bully judges who dared to disagree, behaving disrespectfully in court before maligning the judge to journalists, who obligingly wrote uncritical and sensationalist attacks. Both the prosecutor and the press knew the judges under attack were ethically prohibited from responding, but went right ahead. My years in court before becoming DA taught me that some ADAs had abandoned their obligation to represent the people, preferring to protect bad cops, no matter what lies those cops told or what violence those cops did.
But I didn’t know all the attorneys in the office well; some I didn’t know at all. And I didn’t want to promote or fire people without knowing more once I took office. In November and December 2017, I reached out to some people I respected in the DAO, hoping their opinions would bring useful information. Some people I consulted turned out to be trickier than others, and more tribal in their biases. During the transition, I had coffee with an ADA from the Homicide Unit I’d known for years. Almost all the names on his list of best lawyers in the DAO were Irish, just like his. When I asked him to identify the best Black attorneys, he struggled. I mentioned one Black ADA who, ten years into his career, had shown great promise as a trial lawyer. I asked him what he thought of my idea of advancing the Black attorney to the Homicide Unit. He said, “The kid’s not ready yet.” I found the answer suspicious. During the transition, when I had breakfast or coffee with other ADAs I knew, they told me more of the same. Their tribe was the best. Their biases seemed mostly unconscious, but the pattern became laughably predictable. As they say in Philly, “It’s not what you know. It’s whoz youz knowz.” The Philly DAO was no exception.
For better and for worse, Philly lawyers in general are drawn to their tribes. Especially around the holidays, the segregated nature of the city’s attorney clubs comes into relief as each tribe hosts its own party. The profession presumably charged with thinking hard about equality finds itself fractured into separate tribal clubs for people who are Jewish (Louis D. Brandeis Law Society), Irish (Brehon Law Society), Italian (Justinian Society), Black (Barristers’ Association), Latinx (Hispanic Bar Association), LGBTQ (GALLOP—Gay and Lesbian Lawyers of Philadelphia), and pretty much any other group that can gather up its own quorum. These clubs understandably came into being initially as groups of outsiders, to promote and protect the careers of their respective waves of entry into the profession from discrimination and exclusion by the dominant clubs that preceded them. They give their own members awards and pass around résumé-building leadership positions. They do good work in the community. They recruit more members from their tribe to join their club. As outsiders, their club becomes part of the solution until they succeed in becoming insiders who mirror the problem for the next wave of outsiders. And so the pattern repeats in a hyper-competitive profession that advocates equality but often seems to do something else.
I guessed it would take years to reduce tribal thinking within the office in a way that got it right. But, for now, one of the first and most looming problems I would face upon taking office would be to discharge a portion of our personnel because it was necessary, and to do so in a way that was tactical yet principled. I didn’t want to do it, but I knew I had to, and I had to try to get it right. I learned that lesson the first time I interviewed at the Philadelphia DA’s Office: The coach gets to pick the team.
CHAPTER 18
Taking Power
Swearing In a Movement
I give you power
Where do you think it all comes from, huh?
—Arcade Fire, featuring Mavis Staples, “I Give You Power”
Thirty years in my career had taught me some things about criminal justice; ninety-eight days of the primary campaign and everything since had taught me some things about seeing criminal justice in three dimensions. Without meaning to, I had learned a lot—as a lawyer for outsiders and as an outsider candidate. The campaign and the months before being sworn in had been the final semester of that education. I learned that I was never fighting alone, that I was never even just fighting alongside my allies and activists—that all along, because the criminal justice system had directly and indirectly hurt us all, we were all fighting together. It was the lesson I would need to take into elected office when I went from outsider to reluctant insider, just as I had gone from disillusioned voter to reluctant politician. It was the lesson that would remind me how, even on the inside, we can all fight back together.
It was shortly after midnight on January 1, 2018, when I was informally sworn in as Philly’s next district attorney at home with Lisa and our older son, Nate. The three of us were dressed down, shoeless but wearing socks. This informal swearing-in seemed like a good idea in case of a New Year’s emergency, given the one-day gap between the end of the previous DA’s term and my official swearing-in. Luckily, there was a judge in the house. Nate was back from graduate school at the Actors Studio Drama School in New York for the inauguration. He videoed the midnight swearing-in on his cellphone at my request just in case we ever needed to show it had happened. There were several takes. We couldn’t stop laughing. It was all so ridiculous, this private ceremony in socks. Nate became our director long enough to video one take that was good enough. We opened champagne, but only after the swearing-in was done, so no one could question the legitimacy of the oath.
On January 2, 2018, we dressed all the way up. We wore socks and shoes. I was nervous and went to my closet to pick and repick the day’s clothing. As I had during the campaign, I figured a box full of change wasn’t as scary wrapped in plain paper. This was not the closet of my childhood, when I wore what we could afford. And it wasn’t the closet of my years as a private criminal defense attorney, when a flashier look read as credibility in other people’s eyes. Now my closet was old-school, American-made gray flannel and navy stuff, a little retro, conservative, plain, and more about a good fit than fashion. Dress shirts fit body type, neck and sleeve. Suits were off the rack but tailored. Clothing is not one-size-fits-all. Who would want that? Shoes fit in different sizes and widths, and are made on different lasts. Even socks and ties come in a few sizes. I checked everything twice. As I eyed my collar and fixed the knot on my tie again in the mirror, I was playing with the idea of what traditional prosecutors might have tried to do in the fashion world: One-size-fits-all clothes that were mandatory to wear? Prison clothes, I suppose.
I was nervous about the swearing-in ceremony and my first day as DA, but mostly about what disasters we might face in the days ahead, the four-year term ahead, and maybe even more years than that. Almost as soon as we’d won the primary in May 2017, our team began thinking about what haters in the p
rior administration and their allies outside the office might do in the nearly seven months before we would take office. Although it was a democratic transition, we were anxious to protect the office from sabotage. It wasn’t paranoia.
A few months before I took office, I visited a new chief prosecutor in another city. The year before, she had run for DA and had won on a progressive platform. She was the daughter of an old-time politician and had worked briefly in the district attorney’s office as a young lawyer before spending a couple of decades in other pursuits, including running a victims’ rights organization. As her candidacy gained traction, her incumbent opponent decided to attack her for being a lesbian. It backfired. She won.
After her victory, the hostile old guard asked her to tell them who she intended to retain and who she intended to replace before she took office, so those leaving could look for other jobs. Despite the rancor of the campaign, she felt compassion. So, several weeks before she took office, she provided notice to more than forty people she had decided to separate. Her compassion was not returned. After the notice was received but before she took office, office computer files were wiped and documents were destroyed, all in the midst of an ongoing scandal over bad convictions that would lead to exonerations. The full extent of the damage done by this sabotage may never be known. But crucial evidence was irrevocably lost, and the fact that it was destroyed from within indicated that people in the office had succeeded in hiding some things—and probably meant innocent people would stay in jail forever while the real perpetrators whose cells they occupied went free. When I visited the newly elected DA, she told me she would have charged the ones who did it with crimes if she could, but she had no way to prove exactly who was involved.
Once she took office, she separated forty-some attorneys. When I visited, one of her top staffers privately told me that, in retrospect, they should have fired more people from the start. They ended up dismissing more later. Bitter prosecutors who had received notice they were being terminated told victims that the new DA was their enemy despite her having run a victims’ group for years. They shredded and hid and broke what they could before their new boss was even in the door to start the mending.
Philly and the other jurisdiction had some things in common when I visited. Their chief prosecutors’ offices were nearly identical in size—about six hundred employees each, roughly half of them lawyers. Both jurisdictions covered around a couple million residents. And the history of disappearing data files in the other jurisdiction already had its foreshadowing in Philadelphia history, although more so in paper files. For years in Philadelphia, there had been instances of prosecutors on the most controversial and most serious cases claiming long after conviction that they could not find their trial file on a person who was serving a sentence of life without parole or facing a death sentence. Defense attorneys darkly joked about Philly prosecutors and their shredders. One of those cases in which the file went missing stands out.
Someone viciously stabbed to death a man who had gone looking for drugs to buy. His brother, a police officer, soon learned about the murder. A young suspect was quickly identified and taken in by police. He wore a white sweatshirt that was spotless, untouched by blood. He had no criminal record. There was no known connection between the two men. No physical evidence or adult witness supported the case. The evidence came from the mouths of two young sibling boys who were interrogated by police in the middle of the night and shortly after the murder without parental involvement or lawyers. The statements police typed when they spoke to the boys indicated the suspect had said something about stabbing someone that night, before the stabbing occurred. There were indications that the police had grabbed the boys off the street before school, and brought them to the trial to testify without notifying their family. The one boy who testified at trial broke down in the middle of his testimony, requiring a break in the proceedings. A detective followed him to the bathroom. After the break, the prosecutor used leading questions and got the boy to confirm the story. On cross-examination by the defendant’s attorney, the boy reversed and denied it again. A conviction and sentence of life without the possibility of parole came swiftly for the young man.
More than twenty-five years later, the man remained in jail. Numerous legal challenges had led more than one judge to question the integrity of the conviction based on the children’s testimony. As adults, the two child witnesses both recanted, saying they had been coerced by police and the prosecution to say things that were untrue. In another challenge of the conviction, the original prosecutor was required to provide notes and documents from the trial file. She reported that the entire case file was inexplicably missing and could not be located. Whatever secrets it held would never be known. This kind of “missing file” story, usually connected to a particular group of prosecutors and detectives who banded together for years, was all too common. The young man, now in middle age, was eventually released after completing almost thirty years in jail, shortly before I was sworn in.
The DAO data and electronic systems were vulnerable to digital attacks from outsiders as well. We had enemies, some unidentified. Our campaign had been direct at calling out extremists. We had angered a few anti-Semitic and white nationalist trolls after I condemned the desecration of Jewish cemeteries in St. Louis (a cemetery where my father’s parents were buried) and the nearly identical cemetery desecration that happened in Philadelphia a few days later. I didn’t see anything especially controversial or inflammatory about condemning play Nazis who desecrate Jewish cemeteries, but it turned out white supremacists’ supposedly superior skin is pretty thin, so they got brave online. When we won the primary in May, we were also coming off a presidential election manipulated online in unprecedented ways by Russian hackers. And there had been a few high-profile malware extortions of government offices recently—including in Baltimore and smaller cities. My team and I knew the systems in the DAO were not cutting-edge. Hacking was definitely possible—so possible that eighteen months later the Philly court system itself (but thankfully not our office) was hacked and shut down for weeks. We had gotten only tepid cooperation from the prior administration during the transition and had no reason to trust they were protecting the systems we would soon control. Our hope wasn’t just to get and preserve the information we needed to run the office day-to-day. It was to prevent sabotage.
My security detail—two Philadelphia detectives I had selected with care, Agnes Torres and Tom Kolenkiewicz—came by the house for the very first time and traveled with Lisa, Nate, me, and other family in the morning darkness and arctic cold the few blocks to distribute tickets and then to Philadelphia’s posh, modern classical music venue, the Kimmel Center, a building that looks like a greenhouse had a baby with a spaceship.
Many newly elected officials were being sworn in there that day, mostly judges in black robes looking like a seated choir, spread out across the wide concert stage. Lisa’s robe was hanging on a coat rack backstage until the ceremonies began. But the only two elected officials who would speak were the two at the top of the ticket—the DA and then the controller. A movement had elected me, but only I would speak for them, which didn’t quite feel right.
Criminal justice reform isn’t about any individual. It’s about every individual—it’s a movement dedicated to taking on a system that has abused all of us, directly and indirectly. I wasn’t taking over the district attorney’s office. A movement was. And if criminal justice reform was a movement and wasn’t about me, then the inaugural address for the movement didn’t need much of the politician’s favorite word, “I.” And the swearing-in ceremony shouldn’t be just about me, either. I wasn’t being sworn into office; a movement was. That route was safer for a movement’s progress. It was also safer for me, moving forward.
I understood the dangers of a movement too closely identified with its supposed leader. For a movement’s opponents, a so-called leader is far easier to wreck than the movement i
tself or the ideas that drive it. Wrecking the leader looks like a win and discourages the movement and its growth, at least for a while. This was clear to me from the history of utopian movements, something I studied in a college history course, and from the lives of so-called activist leaders and their movements in America, which I studied in order to defend them. But I also knew it was true from the history of our extended family. Kate Millett’s life, among other things, had taught me that. Her memorial service several weeks earlier had reminded me.
For days, I had been grumbling about the egocentric nature of public swearing-in ceremonies for elected officials, and how contrary to our platform the whole idea seemed. Nate was home from his three-year MFA acting program in New York. He graduated from college with a theater degree and strong academics, but his training in theater and his talent with words, especially spoken words, began long before college. As a toddler, he claimed a neighborhood tree stump where he would air out his lungs for passersby on the sidewalk and squirrels. At thirteen, he seized the stage during a field trip to the Apollo. As he grew older, he excelled in high school theater—slam poetry, hip-hop, college theater, summer stock. He was acting in New York before getting his MFA.
In late 2017, Nate sat quietly thinking for a long time through my talk about the weirdness of my being sworn in alone for a movement. After a while, he said: “If you’re all a movement, why shouldn’t you all be sworn in? People stand up with you. They raise their hands and get sworn in with you. Why not?” It was perfect if we could get a mostly unfamiliar crowd to follow the plan.
As I did with most of my closing arguments, I chewed on ideas for a short inauguration speech for days but couldn’t write it until a few hours before it was time to speak. Starting around six a.m., I spent more time than I had banging out the text on my computer only to discover a printer failure when I tried to print it out. I took out my cellphone and photographed the speech on the computer monitor to capture the text, knowing that emailing the computer file of it to myself and opening that email in the concert hall might fail. The idea of standing in a sleek concert hall before a couple thousand seats without a printed speech was unappealing, even for an old trial lawyer. A photo of the speech would have to do. Past my seven-thirty a.m. deadline, I stepped over my sleeping teenage nephew, one of Steve’s sons, who was in town for the swearing-in ceremony and had been sleeping on the floor of the room where I typed out the speech. I took the photo and ran upstairs to shower and change.
For the People Page 29