Kamala's Way

by Dan Morain

  Police, working through the night, found the AK-47 two blocks away. A block beyond that, they found a discarded peacoat with weed in a pocket and an identification card reading David Lee Hill, age twenty-one.

  On the night of the crime, a friend gave Hill a ride across the bay to Oakland and then to the apartment of a man in the East Bay suburb of San Ramon who had supplied the gun. That man encouraged Hill to turn himself into a hospital emergency room and evidently tipped the police. Hill was physically unharmed but began acting strangely, talking incoherently, slamming his forehead into a door, and wetting himself. Police, having been tipped, arrived at the hospital, guns drawn, and cuffed him, bound his ankles, checked him for gunshot residue, and drove him to the San Francisco jail.

  Police believed Hill was a member of the Westmob and probably was planning to shoot a rival from the Big Block gang, perhaps in retaliation for a murder that happened in February. Hill’s attorney, Martín Antonio Sabelli, later would argue that he was on the street looking to buy marijuana, that the assault weapon was for protection, and that he did not know Espinoza and Parker were cops.

  “To hesitate is to die. To hesitate as a gang member is to die. To hesitate as a gang member on rival turf in the Bayview at night is to die,” Sabelli would tell jurors at the trial in 2007.

  * * *

  On Easter Sunday 2004, officers left flowers near where Espinoza was shot. Neighborhood kids drew a picture of a police car on the sidewalk, the San Francisco Chronicle reported, with an inscription: “Best wishes to our SFPD / Our Best Cops / Love, Victor, Richard, Matthew, Lucy, Sam.” District Attorney Harris helped oversee the investigation from behind the scenes. Mayor Newsom, who took office on the same January day as Harris, was mostly attracting attention for issuing marriage licenses to same-sex couples, but he also was attentive to the rising number of violent crimes in the city.

  There were eighty-eight homicides in San Francisco in 2004, nineteen more than the year before, and San Francisco County would gain the distinction of having the highest homicide rate in California that year.

  “It’s so utterly unnecessary. My heart goes out to the family,” the Chronicle quoted the new mayor as saying when he visited the scene of the April 10 crime on Easter.

  * * *

  Under California law, cop killers can be subject to death sentences. But three days after Espinoza died and before his funeral, San Francisco’s new district attorney, a death penalty opponent, followed through on her campaign stand by announcing she would not seek death for Hill. Harris did not investigate the question of whether a capital crime could have been charged. Nor did she take a more expedient position of waiting until after the funeral. Instead, she made clear from the start that she would stay true to her word. For that, she would pay a price.

  Police officers in San Francisco and around the Bay Area were outraged. Chief Heather Fong attacked Harris’s decision: “We, the command staff of this department, urge in the strongest possible terms that this capital murder case be prosecuted to the fullest extent, and that the death penalty be sought upon conviction, as permitted by law.”

  The San Francisco Chronicle could find no other instance in which prosecutors failed to seek the death penalty against a cop killer. In the capital city of Sacramento, forty-three of eighty members of the assembly, including several Democrats, signed on to a resolution urging that California attorney general Bill Lockyer and the U.S. attorney investigate the matter and intervene if necessary, though the resolution never got to the floor for a vote. It died without a hearing in the Assembly Public Safety Committee, chaired by Harris’s friend, Assemblyman Mark Leno, a fellow San Francisco Democrat. That spared Harris some embarrassment. But Lockyer, who supported the death penalty at the time and was a potential candidate for governor in 2006, let Harris know that he was contemplating exercising his authority to take control of the case. He ultimately didn’t.

  Cops from across the state rode their motorcycles to San Francisco for Officer Espinoza’s funeral on the Friday after his murder. Thousands filled St. Mary’s Cathedral in the middle of the city.

  Harris and Senator Feinstein, who had received campaign support from police unions over the years, greeted each other amicably moments before the start of the service. Harris took her seat in the front pew. Other dignitaries sat nearby, as did Officer Espinoza’s widow, Renata.

  The San Francisco Police Officers Association had endorsed Harris’s candidacy, aware that she opposed the death penalty. But Gary Delagnes, the labor organization’s president, spoke at the funeral: “Isaac paid the ultimate price.… And I speak for all fellow officers in demanding that his killer also pay the ultimate price.” That must have stung Harris. But it got worse when Feinstein stood to speak.

  As a teenager and young woman, Feinstein contemplated pursuing an acting career. Although she gave up the theater for politics, she retained a flair for the dramatic. At St. Mary’s Cathedral, the senior U.S. senator from California discarded her prepared remarks.

  “This is not only the definition of tragedy, it’s the special circumstance called for by the death penalty law,” Feinstein told the audience, as quoted by the Chronicle. One Democrat from San Francisco had turned on another in her moment of vulnerability, in a Catholic church. It was an extraordinarily brutal twist even by San Francisco standards.

  “You could feel the shock. That’s the closest word,” Lockyer, who was in attendance, recalled.

  Many in the crowd, especially the cops, stood and applauded Feinstein; Harris stayed seated. After the service, Feinstein told reporters that she would probably not have endorsed Harris in her campaign for district attorney if she had known of Harris’s opposition to capital punishment, not that Harris had hidden her stand.

  Feinstein had her own history with the death penalty and had played it very differently. As a candidate for governor in 1990, Feinstein appeared before partisans at the California Democratic Convention, a decidedly liberal group, and proclaimed her support for the death penalty. It was, she said then, “an issue that cannot be fudged or hedged.” Party activists booed her. But knowing the vast majority of Californians supported the death penalty at the time, Feinstein and her campaign handlers used the 1990 episode in campaign ads portraying her as strong and tough and showing that her Democratic rival, Attorney General John Van de Kamp, was a death penalty opponent. The ads, like the boos she elicited, served their purpose. She won the Democratic gubernatorial primary, though law-and-order Republican Pete Wilson defeated Feinstein that November. Feinstein won her Senate seat in 1992 and has been elected five times since, including in 2018. In that 2018 campaign, Feinstein, facing a challenge from the left in a state that had become increasingly liberal, declared that she no longer supported the death penalty.

  The attacks on Harris that day and in the days to come would not be the last she endured over her decision. For months, officers would shun Harris by turning their backs when they saw her in the Hall of Justice. Harris made it clear that she would neither fudge nor hedge on the issue, explaining her decision in an op-ed in the Chronicle two weeks after Officer Espinoza’s murder:

  For those who want this defendant put to death, let me say simply that there can be no exception to principle. I gave my word to the people of San Francisco that I oppose the death penalty and I will honor that commitment despite the strong emotions evoked by this case. I have heard and considered those pleas very carefully and I understand and share the pain that drives them, but my decision is made and it is final.

  * * *

  When Harris was elected district attorney, she tapped an old acquaintance, Harry Dorfman, to handle some of the city’s highest-profile murders. Dorfman, who is now a superior court judge, won a conviction of reputed MS-13 gang member Edwin Ramos, who was sentenced to three life terms for killing a forty-eight-year-old man and his two sons in the Excelsior district. Harris declined to seek the death penalty in that case, too. Dorfman obtained a first-degree murder conviction on Clifton T
errell Jr. for the robbery-murder of Hunter McPherson, the son of former Santa Cruz Sentinel editor and California state senator Bruce McPherson, who would later be named secretary of state by Governor Schwarzenegger.

  Dorfman’s biggest case, though, was the prosecution of David Hill. Dorfman declined to discuss the office’s prosecutorial decisions in the case, and no one can know whether a San Francisco jury would have imposed a death sentence on Hill if he had been charged with murder in a way that qualified him for the death penalty. But it seems unlikely. Hill was young and had never been convicted of a violent crime. San Franciscans long have opposed capital punishment, and juries reflect that opposition.

  In any case, in 2007, the San Francisco jury found Hill guilty of second-degree murder, a crime that does not carry with it the death penalty. Jurors did conclude that Hill knowingly shot at a police officer. For that, he was sentenced to life in prison without parole. A state court of appeal upheld his sentence in 2011. Hill is serving it at New Folsom state prison east of Sacramento. He is thirty-seven years of age, eight years older than Isaac Espinoza was when Hill killed him.

  9 Getting “Smart” on Crime

  Presiding over an urban district attorney’s office is not easy, and it was especially tough in San Francisco in the 1990s. Jurors were drawn from a pool of people who were skeptical of authorities, and the justice system itself didn’t abide by the basic rules. On Harris’s watch, prosecutors had to dismiss hundreds of cases after a crime lab technician was discovered dipping into cocaine seized from suspects. Defense attorneys found that her office had failed to comply with the law requiring that prosecutors turn over to the defense evidence that might exculpate defendants.

  But as broken as the office could be, Harris kept making a point of focusing on the people who often were ignored by law enforcement until bullets start flying. The Sunnydale housing projects, far from the breathtaking vistas and charming neighborhoods of San Francisco, is the place to go to best understand how she did that. For decades, the projects ranked as the most dangerous area in the city, and they were never more notorious than the years when Kamala Harris was the district attorney.

  “Sunnydale, also called ‘The Dale’ or ‘The Swamp,’ is littered with bottles and trash,” Leslie Fulbright wrote in a 2008 special report for the Chronicle. “There is no landscaping, just overgrown grass and clumps of weeds. There are dirty diapers in trees. Cockroaches and mice run around inside. Some sinks are so moldy, they are black.”

  Graffiti covered the walls of its 785 units, dozens of which had been boarded up, although that didn’t stop squatters from taking up residence.

  Sunnydale was ruled by street gangs. The city attorney’s office responded with anti-gang injunctions, and the feds hit the project’s shot callers with Racketeer Influenced and Corrupt Organizations (RICO) actions.

  As district attorney, Harris tried her own approach. She repeatedly said she rejected notions of being tough on crime or soft on crime. She professed to being “smart on crime.” In addition to prosecuting cases that police brought to her deputies, she tried intervention and, on more than one occasion, ventured into Sunnydale at night, accompanied by her top gang prosecutors, emergency room doctors from San Francisco General Hospital, and, wisely, a police escort.

  It was kind of a “scared straight” approach.

  The sessions would be attended by as many as fifteen young “at-risk” men in the project’s community room. Harris would give a short introductory speech, followed by a presentation by the doctors who showed the audience members what it looked like when shooting victims came into the emergency room with their stomachs blown open by gunshot wounds. Then her prosecutors took the floor to explain to the gathering what people might expect in terms of years behind bars if they were caught and convicted for the carnage captured in the photographs. The point of it all was to stay out of trouble in the first place, Harris would say.

  Harris also instituted a program aimed at diverting first-time nonviolent offenders from a life in crime by dismissing charges if they enrolled in job training in what she called the Back on Track program. Such efforts were not without political risks, as she would find as she began running for California attorney general.

  The Los Angeles Times detailed the 2008 case of a Back on Track participant who used an SUV to run into a woman whose purse he had snatched. The man was an undocumented immigrant. Harris had to backtrack, promising to exclude from the program people who could not legally work in this country. The woman survived, and the man was kicked out of the program and tried for assault with a deadly weapon.

  * * *

  Then there were the truly private times that the public would never see. Matthew D. Davis tells the story of his neighbor Naomi Gray, an elderly Black woman who long had been involved in city politics and was “over the moon” when Harris was elected district attorney in 2003. Naomi had a stroke and was hospitalized at the city-run nursing home Laguna Honda. Davis remembers thinking one rainy night how lonely she must have been. On the spur of the moment, he called Harris. She picked up the phone. He asked if she knew Naomi.

  “Of course I do,” Harris answered.

  Davis told her it would mean the world to Naomi if she would send a card.

  “What are you doing right now?” Harris asked, surprising Davis.

  They quickly made arrangements to meet in thirty minutes at Laguna Honda. Davis walked Harris to Naomi’s room. Harris sat down at her bedside and held her hand. Davis stepped outside, giving the young district attorney and old woman privacy. Harris came out about twenty minutes later.

  “There were no crowds of potential voters. Just me in a quiet hallway,” Davis said. “We said goodnight and I watched Kamala hustle off to some meeting or event. Naomi passed away a few days later.”

  After Joe Biden picked Harris to be his running mate and Donald Trump called her “mean” and “nasty,” Davis felt compelled to reveal the story in a Facebook essay. It was one of the ways Harris behaved when no one in particular was watching.

  * * *

  Harris used her position as district attorney to shape state policy, sponsoring legislation in her first year, 2004, to increase sentences for sexual exploitation of children. The legislation, carried by then senator Leland Yee, a San Francisco Democrat, redefined prostitution. Children who are bought and sold no longer would be called prostitutes. They were to be called what they are: exploited and victims. Johns and pimps would face longer prison terms for trafficking children. The bill passed without a no vote, and Governor Schwarzenegger signed it into law.

  “It’s finally in black and white, legislated, that adults cannot buy children for sex,” Harris said at the time.

  Yee’s career came to an ignominious end in 2015 when he pleaded guilty to federal corruption charges, including gun trafficking and trading legislative action for campaign donations, in a case involving Chinatown gangster Raymond “Shrimp Boy” Chow, who was the “dragon head” of an international triad. He served five years in prison. Although there was no hint of his shady dealings in the bill Harris sought, the charges against Yee showed that the city’s politics could often veer to the seamier side. District Attorney Harris had promised to crack down on public corruption, but there were no major prosecutions during her tenure.

  As part of her “smart on crime” approach, Harris turned to the unlikely issue of elementary school truancy. Harris cited statistics showing the vast majority of homicide victims age twenty-five and younger were high school dropouts. Most prison inmates also were high school dropouts. The problem, she concluded, had its roots in elementary school. Some children were missing seventy or eighty days a year. To combat it, she and a judge created a truancy court in San Francisco. Harris, who patterned her effort after one created by the Alameda County district attorney, rarely used a hammer. But when parents appeared at the Hall of Justice, a prosecutor was on hand to make clear that the threat of sanctions was real. Between 2005 and 2009, she and San Francisco school offi
cials said, habitual truancy among elementary school students was cut by half.

  In 2010, as she ran for California attorney general, Harris took the issue statewide, turning to a longtime friend and ally, Senator Mark Leno of San Francisco, to push legislation establishing that parents could be charged with a crime for habitually failing to see to it that their elementary and junior high school–age children showed up for class. The penalty could be a $2,000 fine and up to a year in jail.

  “There is a very direct connection between public safety and public education,” Harris told a reporter. “It’s much cheaper to focus on getting that elementary school student to school than it is prosecuting a homicide.”

  The concept did not sit well with the Left. Civil libertarians and defense attorneys opposed it. Their argument had a certain logic: a parent who was in jail would have a tough time forcing his or her kid to show up to class. And did the law really address the root cause of truancy? Nonetheless, the bill passed and was signed into law. “I just want these kids to go to school, and I’m prepared to be the bad guy,” Harris said at the time.

  As attorney general, Harris produced annual reports detailing the problem. The first report showed 29 percent of elementary school children were habitual truants. That had dipped to 25 percent when she issued her final report. A handful of counties did send parents to jail. On the presidential campaign trail in 2019, Harris took heat from the Left for the legislation she championed and said she regretted that any parents were jailed. Harris’s successor, Attorney General Xavier Becerra, quietly stopped issuing the truancy reports once he took office. But California law still allows prosecutors to charge parents of elementary school kids who are habitual truants with crimes.