Transcript: Tested

The full episode transcript for Tested.


Kamala: Next in Line


Joy Reid: It was a Saturday in 2004, the day before Easter. Kamala Harris had been the district attorney of San Francisco for less than five months. Her first few months on the job had been received positively as she took the reins of the office that Terence Hallinan, the man she had defeated, had run for eight years. Gary Delagnes had been president of the police union for even less time when he got a call that would change everything.

Gary Delagnes: I don't think he told me that Isaac was dead, but he told me that Isaac had been very seriously injured, shot and was admission to emergency hospital.

Reid: Isaac Espinoza was an officer in the San Francisco Police Department who had been on duty with his partner in the Bayview neighborhood that night. Gary headed over to the hospital.

Delagnes: When I arrived out there, the press was already all over the place, and I saw Kevin Martin, the guy that called me. He was the secretary of the union, and I saw he was crying, so I knew at that point that Isaac was dead. He was such a popular cop, I mean, just a wonderful kid with really a nice, young wife. And they had just had a little baby.

Reid: At the hospital that night, a crowd began to form.

Delagnes: And as the rumor started to basically make its way around that he was dead, tons of cops started showing up at the hospital. So the people in his station, Bayview station, there was probably 30 of them that showed up. And they want-- oh God, it's still tough to talk about.

Reid: They wanted to see the body.

Delagnes: They had him in a room on a slab, and half his head was gone. It was an extremely emotional night.

Reid: Later, Gary got another call. This time from the new district attorney.

Delagnes: I get a call from Kamala Harris, and she says, "Hey, can we go to lunch?" And I'm, like, well, I'm not really in the mood, but I assumed that it was to talk about the Espinoza case. So I said, "Okay, I'll pick you up in front of the Hall of Justice."

Reid: Gary says they went to a place on Folsom Street that was a popular hangout for judges and cops. And it was there that they discussed the murder. Gary says Kamala told him how sorry she was.

Delagnes: So we finish lunch, and she said, "Will you join me in a press conference today about 4 or 5:00?" And I said, "About what?" And she said, "Well, I want to talk about the Espinoza case." And I said, "Okay." Well, being young and stupid, I didn't see the setup.

Reid: At the press conference, Gary stood right behind Kamala.

Delagnes: She gets up, and the first thing out of her mouth.

Kamala Harris: In San Francisco, it is the will, I believe, of the majority of people that the most severe crimes be met with the most severe consequences. And that life without possibility of parole is a severe consequence.

Reid: In other words, she wouldn't seek the death penalty.

Delagnes: And I'm standin' there goin', "Man, oh man, did you just get set up." Now all my members are watchin' TV, seein' me standin' behind Kamala Harris, while she's announcing she will not seek the death penalty three days before the kid's even put in the ground.

Reid: Kamala Harris had promised not to seek the death penalty under any circumstances when she ran for DA. Now the death of a police officer was putting that promise and her budding political career to the test.

Reid: This is Episode 3, Tested. In the aftermath of that press conference, Gary Delagnes found himself in quite the predicament. He'd appeared on TV standing behind Kamala Harris when she'd announced that she would not seek the death penalty.

Delagnes: And my members were not happy with me. I had to call a meeting of the general membership the next day and explain to them, "Hey look, I didn't know what she was gonna say. I had no idea she was gonna say that. She set me up. She made it look like I was actually in support of her decision, and I'm sorry. And it's bullshit."

And she went out and made this announcement two or three days before the kid was even buReid, put me in a horrible position, and knew exactly what she was doin', which was makin' it look like the police union was supporting her decision to not seek the death penalty.

Reid: Gary didn't speak to Kamala Harris again that week, but at some point he says, he got another call from an important, elected Californian.

Delagnes: I got a call from Dianne Feinstein.

Reid: Senator Dianne Feinstein.

Delagnes: Who basically had always been very supportive of the cops, and she voiced that she was not happy at all with what Kamala did, and that she believed it was a death penalty case. And she didn't give a damn what Kamala Harris promised the voters, that this was somethin' completely different, a cold-blooded murder of a San Francisco police officer. And she was very angry. And I said, "Well, we're angry too."

Reid: The morning of the funeral arrived.

Delagnes: Oh, do I ever. That was, like I say, that was like somethin' out of a Fellini film.

Reid: Hundreds of uniformed police officers filed into St. Mary's Cathedral in San Francisco. The casket was draped in the stars and stripes. The city's political leaders were all there, newly elected mayor, Gavin Newsom, Senator Dianne Feinstein, and district attorney Kamala Harris.

Delagnes: So I'm sitting about five feet from Kamala Harris at the cathedral. I'm right on the end, and she was right on the end of the new pew. And we were exchanging dirty looks.

Reid: After the family had delivered their eulogy, Dianne Feinstein stood up to speak.

Delagnes: During the course of her eulogy, and again, I can't remember the exact words, but she looked in Kamala's direction, and she said something to the effect of, "Make no mistake about it, this is a death penalty case." And all of a sudden, you got a thousand cops stand up in the church and give her a standing ovation. It was bizarre. So you could tell that Kamala was not at all pleased with that turn of events.

Reid: Gary says he knew Dianne Feinstein hadn't been happy with Kamala's decision to avoid seeking the death penalty. But even he didn't expect her to call Kamala out in the middle of a funeral.

Delagnes: So I wasn't gonna talk about the death penalty in my eulogy, so all of a sudden I started scribblin' notes, saying, man, I better say somethin'. (LAUGH) So I got up, and I gave a great eulogy, I thought, about honoring Isaac. And then at the end of my speech, I said that, "All we're asking for is the appropriate punishment for someone that murdered a San Francisco police officer, and that punishment is the death penalty." When Kamala walked outta that church, you could see that she was hot. She was pissed off, man.

Reid: These very public calls for the death penalty put Kamala on the defensive.

Harris: I have been very clear about this case, and in this case, I have reviewed the facts, I've reviewed the laws and have made a decision that was a decision arrived at through not only a process of reviewing all of those things, but through a collective process of consultation with people in my office.

This was not a kneejerk reaction. This was not simply a campaign pledge, therefore it shall be. The decision in this case was a well thought out decision, which was well within the discretion of an elected district attorney in the State of California.

Reid: There were calls to have the case taken away from Kamala and reassigned to the California Attorney General, but that never happened. Kamala's office went on to prosecute Espinoza's killer, and on April 20, 2007, 23-year-old David Hill would be sentenced to life in prison without the possibility of parole.

Kamala's handling of the Espinoza case was a double-edged sword. It created some enemies for her, particularly among law enforcement. But it also got her a lot of attention. She was, after all, a politician who had stood by her word. Brian Brokaw first met Kamala Harris at a fundraising event in 2004.

Brian Brokaw: You know, a lot of cheese and crackers and usually a white and a red. And if you want liquor, you gotta pay for that yourself.

Reid: Brian was 23 years old at the time. He came from a political family and had been involved in John Kerry's presidential campaign in California.

Brokaw: I went to a fundraiser for a candidate for U.S. Senate from the State of Illinois who was raising money in San Francisco, and the host of the event was the newly elected district attorney of San Francisco, Kamala Harris, and the candidate was State Senator Barack Obama.

Reid: Brian had brought a disposable camera along that night, and when he got his chance, he got a picture with Obama.

Brokaw: You know, I don't typically ask politicians to pose for photographs. In fact, I can think of very few instances I've ever done that. So I think it was actually just somewhat, I don't know, maybe I sensed that he was gonna be big one day. And I'm sure glad I actually did, 'cause it's a pretty cool memory to have. I'm glad I actually had the nerve to ask for it and didn't feel too cool like I do now.

Reid: He had the same feeling about Kamala Harris.

Brokaw: She just has this gravitas and this presence when you're in the same room as her that's a very commanding presence. It can be intimidating.

Reid: Brian kept tabs on Kamala during her time as San Francisco DA.

Brokaw: Her life story was just very interesting to me. She's somebody who didn't look like her predecessors, and really that's been the story for her career. I mean, she's somebody who's kinda been the first in almost every job she's had.

Reid: When Barack Obama became president in 2008, Brian, like many others, believed Harris would join the Obama administration. But she had other plans.

Archival Recording: Let me ask you directly. Are there talks underway now between you and the Obama transition team with respect to a position in the administration?

Harris: Everyone is quite clear that I intend to run for attorney general.

Archival Recording: Does that mean no?

Harris: That means that my path is clear. I have this morning signed documents stating my intention to run for attorney general in the State of California.

Reid: Kamala had been San Francisco's district attorney for about six years, and her statewide reputation had grown. Now she was ready to take the next step and run for California Attorney General. If she was to win, she would become the first woman and first Black person to hold that office. (PHONE RING) With about ten months to go until election day, Brian Brokaw's phone rang.

Brokaw: So I got a call from a guy named Ace Smith.

Reid: Ace was calling about a job.

Brokaw: Ace was somebody I had known from previous campaigns that I had been involved with, and he's a legendary figure in California political world.

Reid: Ace was advising Kamala Harris for her California Attorney General run. He asked Brian if he would be interested in the job of campaign manager.

Brokaw: It wasn't a job I was seeking. I decided she was somebody that I should at least interview with, and if it worked out, well, then I'd make a decision. And if not, I at least got to meet her.

Reid: So Brian went to San Francisco for the job interview.

Brokaw: I had printed out stacks and stacks of news articles about her, and I'd done all this research. And I remember gaming out every possible question that I could envision. And so I showed up with this very old school San Francisco office. And go into a conference room, and there was a small table. She was there, Ace was there, a guy named Mark Buell who was her finance chair was in the room, and a guy named Chris Cunnie, who at the time he was the chief of investigations in the San Francisco DA's office.

Reid: Needless to say, the questions were tough. If you've watched Kamala grilling witnesses during the senate hearings, maybe you have an idea of what this was like for Brian.

Brokaw: I mean, the sweaty palms and sweaty everything else. She is somebody who is incredibly skilled at the art of asking questions, so yeah, it was very intimidating. There definitely were not pleasantries, and it was a very serious interview. They were very logical questions.

"Why do you want this job, what do you think it takes to win, what's your experience?" You know, at the time, my resume contained more electoral losses than victories. And so I think I probably had to explain a little bit about the work I had done.

Reid: At one point, someone asked Brian if he was detail-oriented.

Brokaw: Well, I mean, the only obvious answer which was, "Of course, details matter." The truth was, I was probably embellishing a little bit, but I learned pretty quickly that I better up my level of attention to detail from that point on.

Reid: The interview lasted about an hour.

Brokaw: And then I left, and the next candidate was in the waiting room where I had just been before, so I wasn't sure if I actually was gonna get the job. But I did.

Reid: And Kamala meant business.

Brokaw: After I got the job, we instituted a 9:00 a.m. check-in every morning, where she would call me, and she almost always had a list of five or six questions. "Where are we with this issue? Did you call back so-and-so?" And my stomach would start to hurt at about 8:57 a.m. every day in anticipation of that call coming in, because I knew I better have my stuff together, or else it wasn't gonna be a good call.

Reid: And then, it was off to the races.

Archival Recording: You know, I've got the widest range of experience in this race, having both been in business, having worked with law enforcement extensively.

Archival Recording #2: We intend to make access to a quality education in California a civil right for all students.

Archival Recording #3: I went after the health insurance companies when they canceled the policies illegally of policyholders after they got gravely ill. I won a $20 million settlement, and I got people back their insurance.

Harris: I have personally prosecuted homicide cases, some of the worst cases that you can imagine.

Archival Recording: I am the only candidate who has made a commitment to never run for governor.

Brokaw: Six or seven Democrats ran in the primary, including three who were state assembly members she was running against in a very crowded primary where a lot of the institutional players, meaning organized labor and a lot of elected officials and others had longstanding relationships with the politicians who were in Sacramento. Kamala ultimately, as we got closer to the primary was leading in the polls, but it was never enough of a margin to ever feel comfortable. And because she was in the lead, all of our opponents were coming at her.

Reid: Still, on June 8th, 2010, she won the Democratic primary with 33% of the vote.

Harris: So I stand here before you, my dear family and friends and Californians, and I do humbly accept the Democratic (CHEERS) nomination for Attorney General of California.

Reid: They celebrated, but not for long.

Brokaw: The polls that came out after the primary immediately confirmed that we were underdogs.

Reid: Her opponent was the Republican District Attorney from Los Angeles, Steve Cooley.

Brokaw: We knew immediately that it was gonna be an uphill battle for us, because he was somebody that really had fit the mold of what AGs in our state have looked like, frankly.

Reid: Steve Cooley was formidable. He'd twice won the district attorney race in heavily Democratic Los Angeles County.

Steve Cooley: Some leaders, Republicans and otherwise, law enforcement and Republican leaders encouraged me very strongly to run for attorney general. The people that encouraged me said, "Kamala Harris is definitely gonna be the Democrat nominee. We, most people, think you can win. You're the only Republican that can possibly win in California. You have a good reputation. Oh yeah, by the way, we consider her to be dangerous. We need someone to run against her."

Reid: And Cooley's campaign was determined to put the focus on the death penalty.

Cooley: My consultants thought it was a defining issue, something they could take and put on an ad, and that would contrast me from her. And sometimes it boils down to just, if you're gonna spend your money on an ad, you'd like to have one or two issues. And that's what he went with.

And the consultant, his ad, as I recall, focused on the Espinoza case. And Espinoza's mother and sister speaking from their hearts about how much they disliked Kamala Harris for her decision in their brother/son's case. It was very emotional. It was captured by some local television station.

Reid: Brian Brokaw knew it was going to be an uphill battle.

Brokaw: The conventional wisdom was that the Democrats would sweep all of the statewide offices that year, with the exception of AG, where everyone knew that Steve Cooley would likely beat Kamala Harris, who while she had a bright future just wasn't cut out to be attorney general. And that makes it even tougher to be competitive, because it's a lot harder to gain political support. Makes it a lot harder to earn financial support when it's essentially a foregone conclusion that you aren't going to win.

Reid: Steve Cooley garnered support from key law enforcement groups and most of the state's major newspapers.

Cooley: The one issue I think that stood out for them, death penalty. Because they know that their fellow officers, deputies are going to be murdered at some point in time. And they want someone in there who will uphold the death penalty. They knew they couldn't count on her.

And people suggest, "Oh, she's so popular." Well, she isn't that popular. In that race, there were 18 daily newspaper endorsements for attorney general. I got 17. There were 57 law enforcement groups that endorsed for attorney general. I got 57. She got zero.

Reid: The polling didn't look good for Kamala, plus they were outmatched in fundraising. Those 9:00 a.m. calls from his boss became a little tougher for Brian.

Brokaw: It was very stressful, and trying to calm the candidate and explain that there is a method to our madness, and putting some trust in what we were doing.

Reid: Inside the campaign offices in San Francisco, they began to prepare for the one and only debate of the AG campaign.

Brokaw: I can still picture the thick binder with, you've got essentially the main messages that you want to convey in the campaign, and you run different scenarios.

Reid: But the debate practice wasn't always focused.

Brokaw: She's somebody that has a really sharp sense of humor. Sometimes it can be this kind of biting sense of humor, so sometimes our prep sessions would get a little sideways and we'd all be laughing. But at the same time, you're thinking, "Oh God, are we taking this seriously?"

Reid: The debate itself was due to take place at University of California Davis, a huge public research university just outside Sacramento. That morning Brian drove onto the campus.

Brokaw: I remember getting there early, and there's just a lot of nervous energy. Because we knew it was the first and only debate of the general election, and we knew it was one of the few remaining opportunities we had to actually make something happen.

Reid: Inside a mock courtroom at the UC Davis Law School, people began taking their seats.

Kevin Riggs: All right, ladies and gentlemen, it being the noon hour or close to it, I'd like to welcome you to this first ever debate between the Republican and Democratic nominees for the office of California Attorney General. I'm Kevin Riggs of KCRA-3, and I will be moderating this event this afternoon.

Reid: Cooley spoke first.

Cooley, Archival Recording: Thank you very much. My opponent and I share similar titles. However on many other issues, values, and priorities that affect our discharge of our duties as district attorneys and how we would discharge our duties as attorney general, we are starkly different.

I'd like to talk about one of those differences today, and that is the death penalty. My opponent absolutely ideologically opposes the death penalty, which is the law in California. I support it. This particular position of hers was underscored when she refused to pursue the death penalty against the killer, the gang member, the AK-47-wielding gang member who shot down Officer Isaac Espinoza.

Cooley: I thought that my high point was the introduction where I brought out the Espinoza case, because Officer Espinoza's mother and sister were in the audience.

Cooley, Archival Recording: They're supporting me, because they know who should be the next attorney general of California. They know who'll uphold the law.

Reid: Kamala didn't address Cooley's attack in her opening statement.

Riggs: Ms. Harris?

Harris: Thank you. California's criminal justice system is broken, and it needs to be fixed. In this race, there are two clear choices, and it is the choice between going along with status quo and innovation. And I'll give you three examples. Let's talk about the environment.

Brokaw: I had heard Kamala a million times, and heard Steve Cooley enough to know that not a lot of new ground was being broken for much of the debate.

Reid: When Cooley tReid to criticize her again on the death penalty issue, she hit back.

Harris: Steve, I think that you really should not go below the dignity of this debate or the office we seek. This race is a race for who will become the next Attorney General of California, and there are many issues that are important issues that must be addressed.

The reality of it is, I am personally opposed to the death penalty, but I will follow the law. My position on the death penalty is same as four of the last nine attorneys general. You and I both know, nothing will change in the attorney general's office on the issue of the defense of appeal.

The work has been done under the last nine attorneys general, the same way as it will be done by me. And four of those last nine attorneys general hold the same position I do. We need to have an attorney general in California who has the ability to see the many issues that include mortgage fraud, that include high-tech crimes, that include the issues that need to be dealt with in terms of recidivism, the environment. Many issues are at play here and must be addressed. This cannot be a one-issue debate.

Reid: It was fine, but not the punches they needed to land to shift the race. Then, toward the end of the debate, it happened.

Riggs: Jack Leonard has the next question. This is for Mr. Cooley.

Jack Leonard: Yup, Mr. Cooley, the attorney general makes about $150,000 a year, which is less than half what you made last year as district attorney of L.A. County.

Cooley: Right.

Leonard: If you win November's election, do you plan to double dip by taking both a pension and your salary as attorney general?

Cooley: Yes, I do. I earned it. Thirty-eight years of public service. I definitely earned whatever pension rights I have, and I will certainly rely upon that, as to supplement the very low, incredibly low salary that's paid to the state attorney general.

Brokaw: I remember looking at Ace, and we kind of raised our eyebrows at one another, and thought, "Oh, he might have just stepped in it there."

Cooley: I had made the statement, "I earned it," in response to the question. The question was a telling question, not inappropriate.

Reid: The Los Angeles Times estimated his pension would be nearly $300,000.

Brokaw: And this was again at the time when abuse of the pension system was front and center in all of the news. And here we have our opponent saying that he would take his pension on top of the "incredibly low," and I say that in quotes, salary of the AG, which was something, look $160,000 a year, which to most people is not incredibly low. And Kamala had some remark where she kinda laughed and said something like, "Go right ahead, Steve, you earned it."

Riggs: Anything you'd like to add to that?

Harris: Go for it, Steve. (LAUGH)

Cooley: When you get there, you'll want yours too.

Harris: You've earned it, there's no question.

Cooley: My answer was honest. I could have answered it better, in retrospect.

Reid: Afterwards, Brian and the others gathered to celebrate and to figure out whether the Cooley campaign had just thrown them a lifeline. Without much money and lagging in the polls, they decided to use Cooley's answer against him.

Cooley: Her campaign consultant was able to wrap a very effective negative ad against me around the statement I made.

Brokaw: No candidate ever wants to spend all her money attacking an opponent. I mean, candidates run for office to promote themselves and their vision. But the unfortunate reality of this is sometimes that's how you have to win.

Reid: The ad is simple. It uses Steve Cooley's own words from the debate.

Cooley: I definitely earned whatever pension rights I have. And I will certainly rely upon that to supplement the very low, incredibly low salary that's paid to the state attorney general.

Reid: And at the end, a question comes on the screen, "$150,000 a year isn't enough?"

Brokaw: And we put every last penny that we had behind that ad to put it up on the air in L.A. And we would have run it elsewhere, except we didn't have the money. And so that ad ended up being our closing spot.

Reid: Cooley's campaign took a hit. Meanwhile, the Republicans at the top of the ticket were doing even worse. Bad news for the down-ballot races, threatening to pull Cooley down even further. And then, ten days before the election, he was dealt another blow.

Barack Obama: Oh, this is a Trojan kinda welcome right here.

Reid: A personal endorsement from the president himself.

Obama: A dear, dear friend of mine. So I want everybody to do right by her, San Francisco District Attorney, Kamala Harris.

Brokaw: And that had been something that we had been working on for, oh, about the last year and a half.

Reid: To cap it all, President Obama appeared at a rally at the University of South California, Cooley's law school alma mater.

Cooley: So that was a very shrewd move on her campaign's part, to bring Obama in who was very popular, and then go to Steve Cooley's old legal school stomping grounds and have a rally, kinda in his face. That was a shrewd move.

Reid: But Cooley wasn't giving up.

Brokaw: We're feeling really excited about things, and I got a call from a Sacramento Bee reporter asking if I had seen this new ad that the Republican State Leadership Committee had placed. And I hadn't. He described it to me, and all of our excitement from that day with President Obama immediately turned into war mode. Because we knew that we were about to be on the receiving end of a seven-figure attack from this out-of-state Republican group.

Archival Recording: Tell Kamala Harris, California's worst criminals deserve the toughest punishment the law allows. No exceptions. No excuses.

Reid: One of the last polls conducted by the Los Angeles Times and USC before that ad aired had Steve Cooley up by five points. Election day arrived in California.

Brokaw: I remember that particular morning, I drove to San Francisco to meet up with Kamala so she could go vote for herself. And we picked her up at home, and drove her up to the polling place in her neighborhood. Her sister, Maya was there as well, and we had invited the local TV stations to come and cover her. And she walked in and cast her ballot, presumably for herself.

Reid: Steve Cooley voted in Los Angeles and later retired to a hotel room to wait for the results, and what he hoped would be a victory celebration.

Cooley: We were at the Beverly Hilton, very famous old, historic, well-known hotel.

Reid: The Harris team was at the Delancey Street Foundation in San Francisco, the same place they held their primary election night party.

Brokaw: We're all huddled around our laptops and our blackberries and clicking refresh, trying to will votes to come in. So there was kind of a nervous energy, especially because the early returns that night showed Steve Cooley leading somewhere around eight points. But we knew it was early, and we were looking at where the returns had come in and more significantly where they hadn't come in. And we knew that, even though it didn't look good right out of the outset, we were still in the game.

Reid: But at around 11:00 p.m. that night, Steve Cooley felt the game was over.

Cooley: Eventually, I came down and pretty much said, "Hey, we're gonna win this thing."

Cooley, Archival Recording: Although my highly paid, trusted advisors say it may be a little too early, I'm declaring victory. (CHEERS)

Reid: Back in San Francisco, the Harris campaign team was shocked.

Brokaw: How is this guy out here declaring victory? The San Francisco Chronicle, Kamala's hometown newspaper posts the headline online, Steve Cooley Wins Attorney General Race. So I, of course, was furiously calling every reporter I knew saying, "This thing isn't over yet, not by a long shot, and you're gonna feel pretty foolish when the next batch of returns comes in and that gap narrows significantly."

Reid: The race wasn't over, not as far as Brian was concerned. And Kamala Harris?

Brokaw: She was cool as a cucumber that night, and even more so over the next few weeks, which was amazing to me. Because, you know, we were nervous as hell.

Reid: From MSNBC and Wondery, this is Episode 3 of 6, of Kamala, Next in Line. This is a six-part series about the making of Kamala Harris. If you want to help us spread the word, please give us a five-star rating and a review on Apple Podcasts. And be sure to tell your friends.

Subscribe on Apple Podcasts, Spotify, the Wondery app, or wherever you're listening right now. I'm your host, Joy Reid. Associate producers are Chris Seigel and Allison Bailey. Production and research help from Carrie Dann and Julie Tsirkin. Production assistance from Hank Butler. Music supervisor Scott Velasquez. Managing producer Lata Pandya. Sound design by Lindsay Graham. Executive produced for MSNBC by Steve Lickteig. Executive produced by George Lavender, Marshall Lewy, and Hernan Lopez for Wondery.