Jeff Rosen Sought the Death Penalty For An Innocent Man. He Shouldn’t Be California’s Next AG

On July 22, 2020, Santa Clara County District Attorney Jeff Rosen announced he would no longer seek the death penalty, citing the police killing of George Floyd in Minneapolis and his visits to the Legacy Museum in Montgomery, Alabama, the year prior.

There’s more to Rosen’s story, however, that needs to be told.

While it was certainly welcome news that Rosen finally joined the majority of Santa Clara County voters who had twice voted to abolish the death penalty in recent years, those of us who have experienced his office in the courtroom saw his reasons as nothing more than political rhetoric, designed to cover up his indefensible use of the death penalty against people of color. As someone who witnessed Rosen’s attempt to execute an innocent man firsthand, his policy change is nothing more than a brazen attempt to selfishly further his political ambitions.

As Governor Gavin Newsom decides his next pick for California’s top prosecutor, the people of Santa Clara County and the state at large deserve a district attorney and an attorney general who will be honest with them, who admits his or her mistakes, and who does not exploit horrific events in the pursuit of their political aspirations. Jeff Rosen is not that person. 

Rosen’s change on capital punishment, while welcome, means little until he confronts his behavior in a case from this past summer. This is not a case from the distant past, nor about lingering questions in a long-forgotten episode. This is about the day he sat in the courtroom last June—right in the midst of nationwide protests over the police killing of George Floyd—hoping he and his prosecutors would send an innocent, Latinx man to death row. 

Rosen’s office was zealously seeking the execution of an innocent man named Manuel, whose last name is being withheld to protect his privacy. Manuel, a young Latinx man, was accused of sexually abusing and killing his fiancée’s toddler son, Apollo, but flaws with the case were obvious from the beginning. 

The prosecution’s case rested on the idea that the child must have been sexually abused by an adult man because of certain injuries to his genitalia. But the prosecution’s medical examiner admitted in court that he was not saying there was any sexual contact at all; he was only saying there had been injury. The prosecution’s child abuse expert testified that injuries like those suffered by 2-year-old Apollo are most often inflicted as abuse during toilet training. 

Apollo’s mother admitted that she was the person exclusively responsible for his toilet training and that Apollo had two toilet training accidents that fatal night. She also made clear that she ran the household and admitted to bragging on Facebook almost two years earlier that she “ruled” her children with an “iron fist.” Apollo was three months old at that time. Manuel was her fiancé, who her own brother described as “docile.” 

Perhaps most shockingly, Apollo’s mother admitted to her own violence, once stabbing Manuel as he was laying down on their couch after he walked away from an argument with her. Her volatility came to bear during a preliminary hearing when she ran off from the witness stand, throwing open the courtroom doors, knocking a hole in the wall between the inner and outer courtroom doors. The district attorney’s own supervising victim-witness advocate, who was in court with the mother to support her during her testimony, filed a complaint with Child Protective Services out of concern that the other children were being abused by the mother. 

In spite of all this, Rosen personally attended Manuel’s trial, watching his deputy’s closing argument on June 8, 2020, and returning to hear the reading of the verdicts a week and a half later. Rosen’s presence conspicuously demonstrated his pursuit of the conviction and execution of an innocent man. 

As Rosen sat in the courtroom, ignoring clear indications that someone other than Manuel was guilty of this horrifying crime, it was only weeks after the killing of George Floyd that supposedly impacted him so much. People in the community had taken to the streets around him in protest. And yet, in that courtroom, Rosen continued to support this unjust prosecution. 

Gratefully, however, the jury saw through it all. The jury unanimously found that defendant innocent—yes innocent, not just “not guilty”—on June 19, 2020. In their post-verdict interviews, jurors emphasized they found Manuel innocent, not merely “not guilty.”  

Yet Rosen would have taken Manuel’s life. He would have sent a young man of color to death row. He would have done so even after the defense attorneys provided documents to him personally that demonstrated the Santa Clara County district attorney had sought the death penalty only against men of color in the 21st century.

Not only has Rosen repeatedly failed to admit these truths, but to this day he has never apologized for his attempt to execute that innocent Latinx man. To the contrary, his response to the jury’s verdict was to insist that the jury was wrong: “We are deeply disappointed that we could not find justice for Baby Apollo. It was not for lack of evidence or months and months of our best effort,” Rosen said in a statement. 

In announcing his change of policy on seeking the death penalty weeks later, Rosen said that, “shamefully our society’s most drastic and devastating law enforcement punishment has been used disproportionately against defendants of color.” 

We know, DA Rosen. Do you? 

Michael Ogul is a past president of the California Public Defenders Association and retired from Santa Clara County as a deputy public defender at the end of 2020. He and his co-counsel, Kelley Paul Kulick, represented the innocent defendant at the death penalty trial described in this commentary.