Op-Ed: Be Mad at Police, But Also at the Prosecutors Who Protect and Enable Their Abuses

In this moment, we appropriately unleash our anger and frustration at police departments across the country for their continued brutality, violence and harassment imposed upon black people. But to best honor George Floyd, we should fire our very righteous outrage, fury and ire at district attorney’s offices too. 

District attorneys everywhere are the umbrella organization tasked with enforcement of laws and the prosecution of crimes—police officers and the departments they work for are merely the agents of prosecutors.

Together, prosecutors and police form the machine of law enforcement that has exacted a massive toll on and dehumanized black communities in our country for centuries. Police officers terrorize and arrest black people and hand them in shackles to DA’s for the ultimate stripping of their individual and collective humanity.

When police officers act flagrantly in violation of the constitution and our laws, when they illegally stop and frisk a black man walking on our city streets, when they racially profile and pull a car over driven by a black man without reasonable suspicion, when they beat, choke, punch, baton, tase, unleash dogs upon, shoot at and/or kill black men who pose no imminent threat, it is the DA that is responsible for prosecuting those crimes. Or, at the very least, not endorsing that callous and illegal behavior by using the fruits of those unlawful police intrusions as part of their prosecutions.

But that’s not what happens.

Instead, DA’s offices regularly and customarily overlook, justify and promote illegal, unconstitutional police misbehavior by using illegally collected evidence in their prosecutions and by actively and stubbornly opposing 4th Amendment suppression motions brought by public defenders and defense attorneys in our courts.

They regularly and customarily do not prosecute police officers who use unreasonable, excessive force and  brutal violence against black men.

In fact, prosecutors actively and affirmatively protect and shield the police from liability by prosecuting the very black victims of police violence on trumped-up crimes like resisting arrest and assault on a police officer.

If George Floyd had somehow survived Derek Chauvin squeezing the life out of him, the local DA surely would’ve prosecuted Mr. Floyd for resisting arrest—and likely for assaulting the cop. So be mad at the police, but be even madder at the DA’s offices that perpetuate and protect them.

When we yell out “black lives matter,” we call for and demand the recognition and valuing of the humanity of black people in this country.

Yet it is the DA’s offices across this nation that are responsible for actively, affirmatively and proudly dehumanizing black people by perpetuating and feeding the mass incarceration monster that is fueled and filled by black bodies.

It is DA’s offices that rob black people of their humanity by stripping them of their names, calling them defendants, bodies, criminals, thugs, reducing them to their rap sheets and charges.

It is DA’s offices that repeatedly and flagrantly tell us that black lives don’t matter by sending black boys and young men to prison for life and long sentences, by defining them by their worst moments, by separating them from their families and their families from them, turning blind eyes to their stories, contexts and traumas.

It is DA’s offices that diminish black lives by insisting that black men and women with convictions forever be labeled and scarred as felons, offenders, strikers and convicts, preventing them from true reentry and reintegration into society.

To DA’s offices, black lives—no matter what they tell you—do not truly matter except to rack up convictions and fill prisons.

So yes, let’s rally at city halls and at the local police station. But don’t forget to make it loud and clear to our DA that black lives matter. Better yet, make it even clearer at the polling station to vote them out next time they’re up for election.

Sajid A. Khan is a deputy public defender in Santa Clara County and one half of the Aider and Abettor podcast. Opinions are the author’s own and do not necessarily reflect those of San Jose Inside. Send op-ed pitches to [email protected].

18 Comments

  1. In Santa Clara County the top criminal is Jeff Rosen. He gives passes to privileged criminals including SJPD officers and Sheriff’s deputies who engage in Domestic Violence and crimes against children, pedos, and other rapists. The same for those officers who abuse their power throughout the process of their daily tasks. The local police chiefs kiss Jeff Rosen’s @ss, so he continues to grant passes to these criminals with a badge. RECALL JEFF ROSEN!

  2. This article, like many others, misses the point entirely. Police and assistant district attorneys are hired to enforce existing criminal laws. Those laws were passed by politicians with the consent and backing of the voting public. DAs aren’t “sending black boys and young men to prison”- they simply present evidence of criminal behavior to juries. Juries decide if defendants are guilty. Judges sentence those who are convicted. If people think that certain behaviors shouldn’t be crimes, or that particular punishments are too harsh, they need to confront their representatives, not their DAs.

    • What then is their Oath of Office about if not to uphold the Constitution from enemies both foreign and domestic?

    • They do choose who to prosecute. And they choose to NOT prosecute police officers for senseless killings. It starts with them.

    • Evidence that may be fabricated by corrupt officers protecting their own. Your statement is ridiculous and can only be true if every piece of evidence has not been compromised and every officers report is true and don’t forget the lab results, that have been proven to falsify reports. Please check yourself on that point.

    • The prosecutors sit en masse at the state legislature (on the taxpayers dime) with the DA having the ear of the head of the Judiciary who determines which bills will be heard or not. The people are limited to a strict two minutes to speak while the prosecutors sprinkled around the hearing room are allowed to give “closing” arguments with unlimited time. Yes. The DA/prosecutors control the legislation. After bi-partisan bills are created and passed for the Governor’s signature, the DA goes behind their backs and get the Governor to veto them. Unethical and disgusting.

    • Ms Sweeny, you give yourself license to redefine Mr Khan’s point. As you well know, prosecutors commence criminal proceedings based on their unbridled and unchecked discretion. Ultimately, the criminal charges filed in court by prosecutors are frequently more severe than the underlying arrest charges. Why ?? Because prosecutors are trained to read police reports and spot any and all offenses published in the Penal Code, they file anything that will stick. Consequently, we are undeniably seeing a disproportionate impact of this type of overkill filing discretion on the minorities.

  3. Mr. Khan, your savior complex is peeking through. Perhaps there is more nuance to the criminal justice system than what you’re implying.

  4. ATTORNEYS, MAYORS, GOVERNORS, SENATE MEMBERS, HOUSE OF REPRESENTATIVES MEMBERS, SUPREME COURT MEMBERS, JUDGES, CITY, STATE AND TOWN COUNCIL MEMBERS, HEADS OF DEPARTMENTS, WHITE HOUSE AND ADMINISTRATION, AND SO MANY OTHERS WHO HOLD OFFICES, CERTAIN POSITIONS AND TITLES NEED TO BE HELD ACCOUNTABLE, THEY ARE ALL A PART OF LAW ENFORCEMENT BECAUSE LAW ENFORCEMENT HAS A HIERARCHY AND IT IS THE HIERARCHIES WHICH ALLOW THEM TO OPERATE/FUNCTION AS THEY DO, LAW ENFORCEMENT IS NOT JUST THE POLICE

  5. Mr. Khan,

    “Those who live in glass houses should not throw stones”. How about Molly O’Neal hire more public defenders who reflect the community they represent. Start with your office if you want real change. Demand that the public defenders in your office reflect the community they claim to defend. There is a reason why some of your colleagues are known as “public pretenders”. Most of you pretend to care about communities of color, but that is far from the truth. Your self-serving chase for the win blinds you from the destruction your choices cause communities of color. My brother’s public pretender was so “woke” that she thought she could out smart the facts of the case. My brother was sentenced to a much stiffer sentence because his woke ass privileged public pretender was focused on the win and was not willing to accept the fair and justified offer by the DAs office. Police departments and DA offices need reform and change, but so does your office. Review the hiring practices of your office over the past ten years. How many Brown and Vietnamese public defenders are in your office? Why is Molly only hiring privileged kids and not making an effort to hire a more diverse work force. Just saw that the black prosecutors answer to your op-ed and it looks like the local DAs office has more black prosecutors than your office has on its entire staff. Review and reflect on policies that promote getting the win at all cause. That approach is not only unethical, but it devastates our communities of color. Communities of color also deserve and are entitled to be free of murder, rapes, assaults, robberies, and the destruction and theft of their property. The issue Mr Khan is that you are not woke enough to speak for an entire community. A community you have never been a part of. A community you only know through the lense of your clients. When was the last time you walked through Poco Way, Kollmar apartments, Foxdale, 7 trees and talked to the families who live in fear everyday. Fear not from police officers or district attorneys but rather from the gangsters you released into their community. You want change, demand answers from Molly O’Neal. You want change, walk the streets of the Eastside and talk to the victims of crime and learn about the community you represent through their lense. I believe that Public defenders are needed in our courts and are part of a check in a system that needs change. Making sure that the government meets it’s burden before the liberty of an individual is taken from him is necessary and I applaud the defense attorneys who fight for this day in and day out. What I am not okay with is this “Savior Complex” from individuals like you Mr. Khann. Someone who has no idea what it is to grow up in the Eastside of San Jose. From someone who has no idea what it’s like to grow up Black or Hispanic. Mr. Khan you need to be an ally and not a preacher. As an ally go ask Molly to show you the list of the last ten attorneys she let go or didn’t offer a job to and ask her why they are all attorneys of color.

  6. This dude…got some nerve! This is a very odd piece, coming from a person, whose job it is to defend child molesters, rapists, murderers, and gang members, whose bad acts wreak havoc in Black and Brown communities, especially. The imbalance in this article just makes it absurd, and illogical, specifically with regard to Black prosecutors who are in same system, doing a lot of work, without acknowledgement.

  7. This is an honest response to Mr. Khan’s biased, inflammatory and disingenuous Op-Ed.

    Mr. Khan fails to admit that his job every day is to promote, encourage and protect the people who most victimize minority communities. Like many of his colleagues, he will not admit that he revels in his success in this regard. He won’t admit it to the public because that destroys his narrative.

    He will not admit that if he were tasked with defending Derek Chauvin, he would use every trick he has In his legal arsenal to get that murderer off. To claim Mr. Chauvin was “doing his job” and that drug intoxication is what led to Mr. Floyd’s death. To claim that Derek Chauvin suffers from PTSD and therefore his ability to appreciate his conduct was diminished. To claim that Mr. Floyd was resisting and his size made him difficult to restrain.

    These arguments are not pure speculation. If Mr. Khan has defended any homicide or other serious assaultive case, these are the EXACT arguments he would make. When Mr. Floyd’s family recoiled in disgust at those words, Mr. Khan would look them in the eye and say “It’s not about you!” These things are said and done by people like Mr. Khan every single day in courts across America. Go and watch for yourself.

    Mr. Khan claims “It is DA’s offices that rob black people of their humanity…” Ask Nia Wilson’s family if that is true. Ask the far too many African American mothers of crime victims who ask “why does the defense get to lie about my son?” Ask the ones who ask, “Why does the law let the defense lawyer make up facts?” Listen to what they think.

    Mr. Khan says, “Yet it is the DA’s offices across this nation that are responsible for actively, affirmatively and proudly dehumanizing black people…” Ask African American jurors who are excused from jury service by defense attorney’s in EVERY case where the defendant is Caucasian and the victim is African American. Not to mention the systematic exclusion of Asian Americans from juries by defense lawyers. Mr. Khan won’t admit that the rules about the racially motivated excuse of jurors don’t apply the same way. DAs can be reported to the State Bar for such practices. Research and find a single case of a Public Defender being reported. You won’t find one. And yet, PDs are taught to excuse Asians and African Americans when the circumstances suit them.

    Mr. Khan states, “It is DA’s offices that repeatedly and flagrantly tell us that black lives don’t matter by sending black boys and young men to prison…”. FIRST! You don’t get to refer to Black Men as “boys” Sir. Ask an 18 year old black man if you get to call him “boy” and see what happens. Perhaps it’s you who needs to look in the mirror and self reflect. SECOND. Unfortunately, the system is over run with young men who have violated the law and oftentimes done terrible things to innocent people. I wonder what you would think was just if one of those “boys” murdered your mother, father, brother, sister…daughter! I pray you never have to confront that POSSIBILITY. Far too many people in OUR community have to face that REALITY.

    TERRIBLE things are done by the police. And yes, I’ve experienced it first hand. Change needs to happen. DAs must evaluate cases on whether they can prove it beyond a reasonable doubt. Mr. Khan knows this. His job is to convince DAs that they can’t prove the case. His job is to convince Jurors that there isn’t enough evidence to meet the Prosecution’s burden. How ironic that someone like Mr. Khan, who’s job it is to destroy victims, evidence and prosecution cases, is standing on a soap box demanding prosecution.

    Perhaps Mr. Khan will write and honest Op-Ed about how he would destroy Derek Chauvin’s case as a defense lawyer and how a prosecutor would strive for a conviction.

    There is racism in ALL aspects of our society. It’s up to all of us to be more aware of this fact and work to be better, do better and demand better. But we must do it with honest evaluation, honest reflection and honest presentation of reality. I hope Derek Chauvin gets what he deserves!! But make no mistake, there will be a prosecutor trying to get a conviction and someone just like Mr. Khan trying to prevent it. Both sides doing what they think is right.

  8. Prosecutors, NOT police are responsible for the prison population growth. Read first empirical study “LOCKED IN” by John Pfaff, author, Fordham law professor.

  9. Turning peace officers into militarized police — a “shoot first, ask later” mentality — has been the problem. Radley Balko warned us in his 2013 book, “RISE OF THE WARRIOR COP: The Militarization of America’s Police Forces”. Where do we find ourselves today?

  10. Mr. Khan,

    Tell me what I am misunderstanding. You criticize District Attorneys for not bringing enough criminal charges against police officers in your opinion but as a Public Defender wouldn’t it be your job to do everything you could do to defend the officer if they were your client? Does your hypocrisy know no bounds?

  11. The Public Defender’s office is to blame, as well. Under Molly O’Neil, the Public Defender’s office refuses to help people who were arrested unjustly. To have a Trial. And push for plea bargains, instead. In Santa Clara county (where I reside), local state county, and city gov officials refuse to allow unjust cases to be heard by a Judge, so they push the innocently accused into plea bargain. Innocent people sign their rights away, because both the DA’s office, and the PD’s office do not want a Trial if the facts of the case prove a member of the public is in fact innocent.

  12. Absolutely, valid points being made here. In Santa Clara county. Assistant DA’s like Christopher Kwok, Jay Jambeck have a history of denying defendants their constitutional rights. Not much has changed under the current DA’s leadership. Especially for individuals who were treated unfairly in the past. With that said, PD Molly O’Neil and her Public Defender’s do force plea bargains. If a police report shows inconsistencies/ The PD’s should be honest. And make sure a defendant gets their day in court. Fact finding is a critical element in every case.