Op-Ed: ‘Bending the Arc’ Requires Truth-Telling and Humanity

A couple weeks ago, Santa Clara County District Attorney Jeff Rosen held a “Bend the Arc” press conference where he announced policy reforms in response to the societal uprising after the killing of George Floyd.

Rosen instituted some tangible, discreet measures that—although long overdue—were welcome, such as ending the pursuit of the death penalty and requiring his line lawyers to attend jail and prison tours. But there were also glaring omissions of substantial, revolutionary reforms to meaningfully address systemic racism in Santa Clara County.

Notably, Rosen refused to stop prosecuting children as adults, to cease the inhumane pursuit and imposition of LWOP (life without the possibility of parole) sentences or to end racist felony gang enhancements.

More than just these omissions, Rosen’s words illustrated fundamental flaws, misguided rhetoric and ugly dogma that expose his outlined reforms as surface level and perhaps disingenuous. Rosen failed to be honest, to tell the truth.

Acclaimed public interest lawyer and Equal Justice Initiative founder Bryan Stevenson recently said the following: “I think it’s really important that people understand that if you’re genuinely engaged and recovering from human rights abuses, you have to commit to truth-telling first. You can’t jump to reconciliation. You can’t jump to reparation or restoration until you tell the truth. Until you know the nature of the injuries, you can’t actually speak to the kind of remedies that are going to be necessary.“

Rosen failed to tell the truth about his office’s significant, undeniable role in perpetuating systemic racism in this country and in Santa Clara County.

He never uttered a word about the traumas inflicted on our community through decades of systemic racist practices and policies like gang enhancements and Three Strikes. He spoke of the overrepresentation of Latinos and African-Americans and the disparate impact upon them in the Santa Clara County criminal legal system, but never once affirmatively, explicitly or honestly claimed responsibility for those systemic inequities.

Rosen didn’t apologize or offer any contrition—it was as if the systemic racism and mass incarceration of people of color in this county were caused by someone else.

Rosen failed to tell the truth about his office’s co-dependent, entangled, un-objective relationship with police departments such as the SJPD. He did not once affirmatively acknowledge his office’s complicity in the pervasive infliction of police violence and terror upon communities of color in Santa Clara County.

Rosen failed to tell the truth about why he and his office won’t try to kill people anymore as they have tried multiple times during his tenure. He claimed at his press conference that he was no longer seeking to execute people because of the killing of George Floyd and because of his visit to the Equal Justice Initiative’s National Memorial for Peace and Justice in Montgomery, Alabama.

But he wasn’t telling the truth. His office doggedly and stubbornly sought to kill Manuel Lopez at a murder trial just a few months ago after the killing of George Floyd and well after his visit to the Montgomery memorial. Thankfully, despite Rosen and his office’s effort to murder a very likely factually innocent Mr. Lopez, a jury found Mr. Lopez not guilty of all charges and he is now a free man.

Rosen cannot bend the arc toward justice until he can tell the truth.

Rosen also failed to say “Black Lives Matter.” He failed to truly and genuinely recognize the humanity of people who have caused harm.

In fact, at his press conference, Rosen affirmatively used dehumanizing, divisive words to describe those ensnared in the criminal legal system, reducing these complex, layered human beings to “gangsters who have preyed on our community,” “crooks,” “inmates,” and “criminal defendants.”

This inhumanity by Rosen isn’t new.

On the Santa Clara County District Attorney’s official website, Rosen boasts of his office as “successfully prosecuting murderers, rapists, gangsters, child molesters, polluters and fraudsters.” He cannot help but define our fellow human beings by their worst moments and cannot help but to call them condescending names. He and his office simply do not see those who have done harm as fully human.

This inhumanity by Rosen isn’t isolated to him.

One of Rosen’s hires in 2015, Deputy District Attorney Jeff Rubin, seemingly compared people in California jails and prisons, who we know to be disproportionately black and brown, to monkeys at a zoo. Not only did Rosen hire Mr. Rubin, his office published and promoted his offensive, gross analogy in a newsletter [that has since been taken offline]. In that same set of biographies, prosecutors are lauded for having secured life sentences where our fellow human beings are destined to die in cages.

This type of dehumanizing rhetoric and behavior is unsurprising from a DA’s office led by a man whose bio on his personal campaign website touts his “history of putting bad people behind bars made a strong transition into his administration” and boasts about  how “under his leadership, the DA’s Office has convicted dozens of gangsters …”

Calling human beings inflammatory names and reducing them to “bad people” and “gangsters” doesn’t counter systemic racism—it perpetuates it.

It also forms the backbone of our mass incarceration epidemic that is predominantly fueled by black and brown people.

The persistent, pervasive, promoted office culture of dehumanizing and demonizing those accused and convicted of crimes—people who are largely black and brown—doesn’t promote public safety. This harsh judgment of people ignores root causes of crime, prevents collaboration to resolve and remedy those underlying issues and runs counter to any notion of redemption and rehabilitation, leaving us all less safe and less healthy.

Mr. Rosen cannot bend the arc toward justice until he says Black Lives Matter. He cannot bend the arc until he stops the dehumanization and name-calling of people who are accused and convicted of crimes. He cannot bend the arc until he and his office truly honor and recognize the lives and humanity of all our fellow human beings.

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].

11 Comments

  1. “the killing of George Floyd”

    It’s ironic that a public defender would choose to opine publicly that George Floyd was killed, as opposed to his having died in custody, given that the former has yet to be determined in a court of law. I thought all officers of the court, and especially those charged with representing clients who can’t afford to hire skilled lawyers, understood the concept of assumed innocence. It’s almost as if Mr. Khan, other than memorizing a bunch of progressive claptrap, missed his law school lessons about objectivity and blind justice. I wonder if he knows that Lady Justice is not supposed to take a peek and tip the scales against defendants wearing police uniforms?

  2. Is Mr. Khan engaged in heavy drug use? Does he honestly believe the public should have sympathy for child molesters, rapists, and murderers? This opinion piece is so ludicrous and hyperbolic, I almost mistook it for parody. I have friends who are criminal defense attorneys and public defenders, and none of them would write such drivel.

    I guess Mr. Khan, has drunk the Kool-aid, but the rest of us will pass.

  3. It is important to note that Mr. Rosen has a long way to go when it comes to truth telling. Mr. Kahn has done a great job of holding Mr. Rosen accountable from the public defender angle, but we need to also look at how Mr. Rosen has failed the countless crime victims in this county for the past 10 years.
    The role our local media has played in assisting Mr. Rosen can’t be left out of the equation either.
    Let’s review:
    In 2012 Mr. Rosen and the local media took on the narrative of Audrie Pott’s suicide and the connection to cyberbullying. Mr. Rosen aligned himself with the white blonde parents and ignored Audrie’s real father who was Hispanic- Asian and who could have told of the horrible domestic violence and abuse Audrie endured in the home of Lisa and Larry Pott, as well as her own mother Shelia. The kids all knew and the local press, and Mr. Rosen, were silent to assure Rosen’s re-election, a $3 million settlement to the blonde parents and a Netflix movie ( Audrie and Daisy) , that was short on facts but big on budget.

    In 2013 Kamala Harris investigated Mr. Rosen and found he had misused public funds to give kickbacks to DAO employees loyal to his political campaign. He just had to pay it back.

    In 2014 Mr. Rosen ignored domestic violence and sexual assault cases coming from the 49er football players who came to town and who had Eric Geffon in their pocket to assure no victim could get justice in the courts.

    In 2015 Mr. Rosen played he victim lotto in the criminal cases of Ray McDonald and Brock Turner. He went all in with Turner as he hitched his wagon to Michele Dauber and the white women at Stanford to assure a conviction and related recall of Judge Aaron Persky. Mr. Rosen didn’t worry much about Mr. McDonald, who was paying Mr. Rosen’s biggest political supporters.

    In 2016 Mr. Rosen forgot to disclose those little rallies he held with Sharon Stone in his form 460.

    In 2017 Mr. Rosen ignored a rape victims with a positive SART kit to advance the narrative of Chanel Miller. Mr. Rosen assured Ms. Miller a book deal , his DDA Cindy Hendrickson a spot on the family court bench and Judge Persky a life where he could not even get a job as a tennis coach, all by misusing public funds to provide Ms. Dauber the information she needed for her political . campaign.
    In 2017 Mr. Rosen told a woman trafficked to Los Gatos by a LDS missionary , her family law case before Judge Towery made her ” not credible”.

    In 2017 Mr. Rosen ignored a reporter who was stabbed to protect his buddies at the San Jose Mercury, Sydney Whalen then went on to kill a Fremont man and attempt to kill another man with hammers to his head. That case had to be moved to Alameda County because Mr. Rosen didn’t do his job.
    In 2017 Mr. Rosen shamed Neha Rastogi , deeming domestic violence unworthy of his time.
    In 2018 Mr. Rosen was re-elected after running unopposed becuase he threatened and exhorted everyone who could have challenged him.
    In 2019 Mr. Rosen let the San Martin rapist go, apparently not too concerned about rape after sucking all the resources in the state for the Brock Turner case and related Persky recall.
    In 2020 Mr. Rosen bragged about spending public funds to send 15 prosecutors to Alabama, in a manner kind of like saying ” See we have black friends and we understand the civil rights movement”.
    In 2020 Mr. Rosen said his office designed code to get rid of all the weed convictions as Prop 84 required, most folks I have heard from said that code hasn’t worked on their cases.
    In 2020 , while bunkering in place, Mr. Rosen announced his office has developed a new App for crime victims. Most victims can’t even get their police reports , they need those more than an App.

    Do not think that Mr. Kahn is advocating that we let violent criminals lose in our community, Mr. Rosen was already doing that as part of his plan to stay in office. The biggest criminals are the white collar criminals. They do the most harm and they are Mr. Rosen’s biggest political contributors.

    Hopefully we will remember 2020 as the year we pushed through a global pandemic and finally cleaned up the public corruption infecting the DA’s office since Jeff Rosen was elected in 2010.

  4. Mr. Khan,
    You’ve written an extraordinary piece! You are a fearless defender willing to speak truth to power, even at great risk to your professional career, as a public defender working in the same prison industrial complex, and for the same employer as DA Rosen. I have nothing but admiration for your willingness to be not just a great public defender -but an equally fearless activist for justice on all fronts. Congratulations on another outstanding article.

  5. The Coroner determined that Floyd was killed That is a legal conclusion permitted by Coroners to conclude. Sure, a fact finder can overturn that legal conclusion but it is a rebuttable presumption of fact until it is overturned. Presumption of innocence applies to who did the killing not whether or not their was a murder. Nice try conflating the two though. The legal process determines two facts simultaneously: 1, there was indeed a crime committed, and 2, the defendant did it. The presumption of innocence applies to whether or not the killing was murder by the defendant, not the presumption that the Coroner was correct that a killing occurred.

  6. Try Logic

    Are you kidding?

    Its murder when the jury convicts.

    Mike Brown was killed after he attacked and tried to take a gun from a police officer, he was not murdered.
    George Floyd was killed, it is yet to be determined if he was murdered. Even the autopsies have inconsistencies.

    BLM zealots, you need to set your expectations.

    It is likely Mr Floyd was not murdered, certainly not beyond a reasonable doubt. There is also zero evidence shared with the public that race had anything to do with it. The defense had a difficult case with third degree and are over prosecuting so when the jury comes back with an acquittal it will look like injustice. Ellison has acknowledged the challenge even at third degree. This is political theater.

    Even if the jury finds him guilty, prepare yourself for the disappointment of getting it turned over on appeal. All the facts point to the officer following city policy. The policy may suck, but you cant be held responsible for doing your job and how you were trained to do.

  7. It’s a plainly inaccurate statement to say that Sajid Khan’s piece poses any risk to his professional career as a public defender. It is a hyperbolic statement without support.

    Mr. James’ comment that Mr. Khan has the same employer as DA Rosen is absurdly false. What else has Mr James gotten wrong?

  8. SJ Kulak: It’s murder when the jury convicts, and killing when the Coroner says so. You conflated the two, not me.

  9. @TRY LOGIC

    Coroners determine the cause of death. It some jurisdictions it is based on the opinion of a medical examiner, in others not, but in neither case does it qualify as a judgment against a particular person. Because it is an opinion it is, as is evidence of all types, subject to dispute and even refutation. Courts do not take judicial notice of such reports.

    I suggest your prodigious powers of logic caused you to miss the point made in some of the comments. The objection against “killing” had nothing to do with a coroner’s report, it had to do with an officer of the courts’ uninformed classification of Floyd’s death as a killing, which is, in this case, tantamount to dismissing the notion of presumed innocence and declaring the officers guilty of the killing. Were Mr. Khan obliged to defend a client in such a case you can be sure he would never refer to the death as having been a killing.

  10. Phu Tan Elli: Your point is one leap in logic to the next. The “Judicial Officer” correctly expressing the conclusion of “killing” but using some non-authoritative source is irrelevant. The correct conclusion was none the less cited, “killing,” and will stand until such time it is overruled by a fact finder (if it ever is). Imputing motive to the speaker is what you did, as if that is relevant–motive of the speaker evil or good doesn’t change the determination of “killing.”

    Your comments about evidence, judicial notice, and references to decision standards are not pertinent either.

    The leap to a conclusion of “dismissing notions of innocence until proven guilty” for citing the correct conclusion of the Coroner (or his/her surrogate) is hardly a dismissal of anything. But if you really think it is, why do District Attorneys, who are also Officers of the Court, announce the guilt of a defendant prior to a court ruling of such? How many closing arguments include a statement from the DA that “the Defendant is guilty”? It’s only a problem when the defendant is a Police Officer? hmmmm…

  11. @TRY LOGIC

    The job of a prosecutor is to convince a judge or jury that “the defendant is guilty” of the charge filed by his/her office after first surmounting, through the introduction of evidence, the defendant’s presumed innocence. You seem to be under the impression that the burden of proving or disproving the evidence falls to the defense (as in disproving the validity of the coroner’s finding). Not so. In this case, should the prosecutor prove incapable of supporting the coroner’s finding the defendant(s) cannot be convicted of homicide (of any degree) — even if they don’t put up a defense.

    Mr. Khan, in pronouncing the death of George Floyd a “killing,” did so with complete disregard to the presumed innocence of the police officers, and did so without offering any evidence to support his statement. Such behavior from an officer of the court is indefensible. That said, if you insist on defending it, then I assume you would find it acceptable were he to ignore the presumed innocence of his own client and share his incriminating opinion with the court.