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  “Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State,” he wrote. “It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed. And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional.”

  Carney concluded that the death penalty was unconstitutional because no one was being executed. If his order stood, it could mean the end of capital punishment in California. Attorney General Harris had a choice. She could have decided that Judge Carney was correct and not appealed, as part of an effort to put the death penalty system out of its misery. That would have cheered death penalty abolitionists. But her deputies would have been outraged and she would have faced protests from death penalty supporters. She would not have been true to her promise during the race for attorney general that despite her personal opposition, she would enforce the law and defend capital punishment.

  Harris decided to appeal the case, explaining the decision in a brief press release, saying the ruling was “not supported by the law.” Most interesting, her statement added that Carney’s ruling “undermines important protections that our courts provide to defendants.”

  Some California Department of Justice deputies had no idea what protections for defendants she was talking about. Nor did lawyers for death row inmates. On its face, Carney’s ruling undermined no discernible protection for defendants. But Harris was thinking steps ahead. If she refused to appeal, she assumed, county district attorneys who supported capital punishment would have stepped up to pursue the appeal on their own. In time, the case could have reached the U.S. Supreme Court. There, a majority of justices had shown impatience for repeated appeals. She was concerned that the justices would have concluded that, indeed, there were too many impediments to executions and that states needed to more efficiently execute inmates. Carney’s ruling could have ultimately undermined efforts to abolish the death penalty. The state appealed Carney’s ruling to the U.S. Ninth Circuit Court of Appeals, which called Carney’s ruling “novel” and reversed it in 2015. That meant capital punishment would remain the law of California. Until, that is, Gavin Newsom stepped in.

  * * *

  On March 13, 2019, two months after being sworn in as Jerry Brown’s successor, Governor Newsom called a press conference to announce that he was taking the dramatic step of imposing a moratorium on executions. No one would be executed as long as he was governor. Newsom underscored that order by directing that the death chamber be disassembled, its various parts trucked to a warehouse. At the time, California had 737 condemned inmates; one was from San Francisco.

  By then Harris was a U.S. senator and a newly announced candidate for president of the United States, and this freed her from what she saw as the constraints of being attorney general. On the day of Newsom’s announcement, Senator Harris issued a press release praising the governor’s action and called the death penalty “immoral, discriminatory, ineffective, and a gross misuse of taxpayer dollars.” The following day, she told reporters that she wanted a moratorium on the federal government’s use of the death penalty.

  Newsom’s executive order did not abolish the death penalty. Nor did it empty death row. A constitutional amendment making it the law and approved by voters in 1972 remains in place, though it is like a zombie. As of this writing, California has 691 condemned men and 20 condemned women. Their sentences are in limbo. None will die at the hands of the state so long as Newsom is governor. They will age, however, and succumb to other causes. Between June 24 and July 29, 2020, as the novel coronavirus ripped through San Quentin, thirteen death row inmates died, equal to the number of people executed at San Quentin between 1992 and 2006.

  * * *

  Harris’s hands-off approach to death penalty cases may have cost her during her 2019 presidential run. One line of attack by her Democratic opponents was that she had not insisted on DNA testing that might have exonerated a death row inmate, Kevin Cooper.

  Cooper has been on death row since 1985 for the 1983 massacre of four people in their home in Chino Hills, east of Los Angeles. Doug and Peggy Ryen (both forty-one), their daughter, Jessica (ten), and an overnight guest, Christopher Hughes (eleven), had been hacked to death. The Ryens’ eight-year-old son, Joshua, survived, though his throat had been slit. The murder scene sickened the most hardened detectives and shocked Southern California.

  Cooper had been serving a four-year prison term for burglary when he escaped from the California Institution for Men in Chino shortly before the murders took place and holed up in a home 126 yards from the Ryens’ home. He claimed his innocence from the start, that he was in the wrong place at the wrong time. In the decades since the murders, there have been six attorneys general, and deputies under each of them have defended Cooper’s conviction. Much of the legal battle has been over DNA. For decades, his lawyers had been requesting that DNA testing be conducted so that he could prove his claim. That request has been public dating back to at least 2000, when the Riverside Press-Enterprise produced a 3,700-word exposé raising questions about Cooper’s conviction.

  As the Riverside paper reported, Joshua Ryen said he thought there were three killers and that they were either White or Latino, and Jessica Ryen had blond hairs clenched in her hand. Cooper is Black. A bloodstain on a hallway wall could prove or disprove his innocence, his lawyers contend.

  “They’d rather execute an innocent man than admit that they made a mistake,” Cooper told the Press-Enterprise in 2000.

  In January 2004, the month that Harris took office as San Francisco district attorney, Governor Schwarzenegger refused to grant clemency to Cooper. Cooper’s execution was set to take place at a minute past midnight on February 10, 2004, a Tuesday. On that Monday, after Cooper had been moved from his cell to a holding cell near the execution chamber, an eleven-judge panel of the U.S. Ninth Circuit Court of Appeals intervened and blocked his execution. That decision placed Cooper’s case on hold. His lawyers and deputies and the attorney general have spent years since then battling over DNA testing.

  On May 17, 2018, New York Times columnist Nicholas Kristof wrote a 3,500-word piece detailing the many questions about Cooper’s conviction and singled out Governor Jerry Brown, who as attorney general declined to require DNA testing, and Kamala Harris, who also had failed to act:

  It appears that an innocent man was framed by sheriff’s deputies and is now on death row in part because of dishonest cops, sensational media coverage and flawed political leaders—including Democrats like Brown and Kamala Harris, who was California’s attorney general before being elected to the U.S. Senate. They both refused to allow advanced DNA testing for a black man convicted of hacking to death a beautiful white family.

  After the column was posted online, Kristof reported, Harris called and said, “I feel awful about this,” and issued a statement urging Brown to allow for the testing. On Christmas Eve 2018, shortly before the end of his time in office, Brown agreed to order testing, though his order fell short of the full testing Cooper’s lawyers sought. In 2019, Governor Newsom issued an order expanding that testing.

  In the months that followed, investigators found that blood samples were missing or had so degraded that they were inconclusive, with the exception of one bloody towel discovered not far from the Ryens’ home. DNA showed it was not Cooper’s blood. Cooper’s lawyers hope for a pardon from Newsom, or an order for a new trial. Although Harris didn’t act when she was attorney general, Senator Harris did react to Kristof’s report by calling on Governor Brown to order testing.

  “That was a big break for us,” Norman C. Hile, Cooper’s attorney, said. “I am very grateful for what she did.”

  As of this writing, Cooper remains in prison. He was twenty-five at the time of the crime; he’s sixty-two now.

>   15 Wedding Bells

  At first, Kamala Harris was a bit player in the historical march that led to the legalization of same-sex marriage in America. It was Gavin Newsom who took center stage and became the hero of the marriage equality movement during his tenure as mayor of San Francisco. In the days leading up to Valentine’s Day weekend of 2004, Newsom generated international attention, much approbation, and plenty of criticism by decreeing that the city and county of San Francisco would recognize same-sex marriage.

  Harris, the newly inaugurated district attorney, was en route to the airport when she saw the crowd lined up outside city hall, stepped out of her car, and was quickly deputized to help officiate.

  “We stood together performing marriages in the hallway, crowded into every nook and cranny of City Hall,” Harris wrote in her autobiography, The Truths We Hold. “There was all this wonderful excitement building as we welcomed the throngs of loving couples, one by one, to be married then and there. It was unlike anything I had ever been a part of before. And it was beautiful.”

  Harris and Newsom were young stars on the rise, occupying a similar political space and attracting many of the same benefactors. News accounts from that time described their relationship as chilly. One day, they might find themselves running against each other. In the meantime, Newsom knew how to make headlines. On January 20, 2004, twelve days after his swearing-in as mayor of San Francisco, he attended President George W. Bush’s State of the Union address, the guest of his hometown congresswoman, Nancy Pelosi, then House minority leader.

  “Our nation must defend the sanctity of marriage,” Bush told Congress, raising the prospect of a constitutional amendment that would define marriage as being between a man and woman.

  As Newsom’s aides later told the story, the new mayor decided then that he was going to challenge societal norms by directing them to take the necessary steps to issue marriage licenses to same-sex couples. The idea was bold, to be sure, but hardly unique. Already, there was a public effort afoot in San Francisco to legalize same-sex marriage.

  In 2003, Assemblyman Mark Leno, Harris’s friend and ally and a San Francisco Democrat who is gay, was working with lawyers at Equality California, the LGBTQ rights organization and a leading advocate of marriage equality, on legislation that would, they hoped, lead to legalization.

  On January 15, 2004, the Bay Area Reporter, a publication aimed at the LGBTQ community, broke the news that Leno would introduce the legislation in Sacramento. It would be the first in the nation and almost certainly would gain national attention. Its chance of success was slim. Party leaders urged Leno to wait. But Leno pressed ahead, delivering the bill to the assembly clerks on February 12, 2004. The date was significant. It was National Freedom to Marry Day, a day on which same-sex couples would go to their county clerks seeking marriage licenses, be turned away, and then protest.

  Newsom was about to take an action that would relegate Leno’s bill to a footnote. On that same day, citing the California constitutional right that grants everyone equal protection, Newsom directed county officials to begin issuing marriage licenses to same-sex partners. As word spread, hundreds of couples wearing wedding dresses, tuxedos, shorts, T-shirts, and jeans converged on the gilded Beaux-Arts city hall. Some flew in from other parts of the country.

  Gavin Newsom had cemented his status as a social justice pioneer.

  Fellow Democrats, including Massachusetts Democratic congressman Barney Frank, who is gay, and Senator Dianne Feinstein, one of Newsom’s predecessors, were aghast.

  “Too much. Too fast. Too soon,” Feinstein said at the time.

  John Gibson, then a Fox News host and a former San Francisco newsman, called Newsom “San Francisco’s gay-marriage mayor,” noting thousands of same-sex couples had been hitched and describing it as “a marriage lollapalooza.”

  At the time, California law defined marriage as being between one man and one woman. That was the result of an initiative, Proposition 22, approved by voters on March 7, 2000, by a 61–39 percent margin. Significantly, Proposition 22 created a statute, not an amendment to the California constitution, and that would prove to be its undoing later in the litigation.

  But first, the California Supreme Court, citing that statute, acted to halt same-sex marriages on August 12, 2004. The court did not reach the question of whether marriage was a right. Instead, the justices issued a narrow ruling, concluding that if local officials could ignore the state law on marriage as a violation of the Fourteenth Amendment, they could just as easily ignore laws banning, say, assault rifles as violation of the Second Amendment. The justices’ reasoning:

  If every public official who is under a statutory duty to perform a ministerial act were free to refuse to perform that act based solely on the official’s view that the underlying statute is unconstitutional, any semblance of a uniform rule of law quickly would disappear, and constant and widespread judicial intervention would be required to permit the ordinary mechanisms of government to function. This, of course, is not the system of law with which we are familiar.

  That decision would not be the last word. Appeals would continue for a decade. San Francisco district attorney Kamala Harris had no part to play then, but that would soon change.

  * * *

  Before the court put a stop to the same-sex marriages in 2004, about eighteen thousand couples had gotten married in California. From across the state and nation, attorneys filed briefs in what they thought would be the defining case on marriage equality. District Attorney Harris was not among those attorneys; it was not part of her purview. Her job was to prosecute criminals, not defend the actions of the mayor or the county clerk who issued marriage licenses.

  The state constitutional question reached the California Supreme Court in May 2008. Chief Justice Ronald George was waiting. George had sworn in Harris as district attorney on January 8, 2004, with her mother, Shyamala, proudly looking on. No one could question George’s law-and-order credentials. As a deputy attorney general in the early 1970s, George defended California’s death penalty statute before the California Supreme Court, and it was Governor Ronald Reagan who first appointed him to the bench. As a superior court judge in Los Angeles in 1981, George assigned Republican attorney general George Deukmejian to take over the prosecution of Angelo Buono for ten rape-murders in what was known as the “Hillside Strangler” case, after Los Angeles County district attorney John Van de Kamp concluded that Buono’s cousin and accuser, Kenneth Bianchi, was an unreliable witness and refused to proceed. Buono was convicted and died in prison in 2002. Republican governor Pete Wilson appointed George chief justice in 1996.

  On May 15, 2008, George issued a 221-page decision for the majority in the 4–3 decision. “In view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.” Proposition 22 created a statute that violated the California constitution. It was an unequivocal victory for marriage equality.

  Religious conservatives had other ideas. The National Organization for Marriage, the Church of Jesus Christ of Latter-day Saints, the Knights of Columbus, and Catholic bishops, among other advocates of what they called “traditional marriage,” had paid petition circulators to gather 1.12 million signatures of registered voters. Two weeks after the state supreme court issued its ruling in the Proposition 22 case, California election officials announced what would become Proposition 8. That new proposition, which qualified for the November 4, 2008, ballot, would overturn the California Supreme Court decision by amending the California constitution to read: “Only marriage between a man and a woman is valid or recognized in California.”

  The “Yes on Prop. 8” campaign, which banned same-sex marriage, raised and spent more than $43 million. Playing on fears that same-sex marriage would be harmful to children, the money paid fo
r ads in which a little girl comes home from school and tells her horrified mom, “Mom, guess what I learned in school today? I learned how a prince married a prince.”

  “Teaching about gay marriage will happen unless we pass Proposition 8.”

  District Attorney Harris spoke out against Proposition 8. Her sister, Maya Harris, then director of the ACLU of Northern California, was directly involved in the campaign to defeat it. Maya Harris and leaders of Equality California selected the campaign team and raised $42 million toward the effort; the ACLU of Northern California delivered more than $2 million.

  Newsom and the mayors of San Diego and Los Angeles campaigned against Proposition 8. Feinstein lent her voice to the opposition, as did Senator Boxer and Governor Schwarzenegger. The California Teachers Association gave $1.3 million toward its defeat. Hollywood figures, including David Geffen, Brad Pitt, and Ellen DeGeneres, gave $100,000 each, as did Silicon Valley leaders including Google cofounder Sergey Brin.

  On election night 2008, Democrats had much to celebrate. They gained twenty-one seats in the U.S. House of Representatives, enough to make Nancy Pelosi Speaker. Democrats in the U.S. Senate gained a filibuster-proof sixty seats. Most important, Barack Obama became president. In California, Obama trounced Senator John McCain, the Arizona Republican, by a 61–37 percent margin. But California remained many states.

  More than 75 percent of voters in San Francisco voted against Proposition 8. But a majority of voters in forty-two of California’s fifty-eight counties, including the population centers of Los Angeles, Orange, and San Diego Counties, supported the measure. Proposition 8 was approved 52.3 to 47.7 percent.