Hard-Line Prosecutors Face Rejection From Voters in Elections Across the U.S.

Increasingly, voters are holding prosecutors accountable for misconduct and abuse in the criminal justice system.

Harris County District Attorney Devon Anderson speaks during a news conference regarding the shooting death of Harris County Sheriff's Deputy Darren Goforth, Saturday, Aug. 29, 2015, in Houston. Prosecutors on Saturday charged Shannon J. Miles with capital murder in the Friday killing of Goforth at a suburban Houston gas station. (Marie D. De Jesus/Houston Chronicle via AP) MANDATORY CREDIT
Harris County District Attorney Devon Anderson speaks during a news conference regarding the shooting death of Harris County Sheriff's Deputy Darren Goforth, Saturday, Aug. 29, 2015, in Houston. Photo: Marie D. De Jesus/Houston Chronicle/AP

Campaigning this summer and into the fall, Donald Trump has repeatedly claimed that crime is plaguing American cities and what the country needs is a return to law and order — more cops, and consequently, more prosecutions. Aside from the fact that crime in most American cities remains at historic lows, voters in jurisdictions across the country seem to have something different in mind — a shift toward more progressive leadership within the criminal justice system, judging from recent district attorney elections.

In Chicago, a city Trump has repeatedly pointed to in his speeches, two-term incumbent Cook County prosecutor Anita Alvarez lost her March primary battle to Democratic challenger Kim Foxx. Alvarez was excoriated for her inaction in the wake of the Laquan McDonald shooting and has been criticized for her defiance and foot-dragging in wrongful conviction cases. “Our criminal justice system is profoundly broken,” Foxx said during a debate. And Alvarez “doesn’t even realize that it’s broken.”

In August, notorious Florida prosecutor Angela Corey — known for unsuccessfully prosecuting George Zimmerman for the death of Trayvon Martin; pursuing criminal charges against Marissa Alexander, who fired a gunshot into a wall as a warning to an abusive husband who had threatened to kill her; and prosecuting a 12-year-old as an adult, among other career lows — was toppled by an “unknown corporate lawyer” named Melissa Nelson.

These elections are part of a small but growing trend in district attorney races across the country in which voters are eschewing the traditional tough-on-crime narrative that has dominated prosecutor elections for decades in favor of more reform-minded candidates whose platforms include holding police more accountable and taking more seriously cases of wrongful conviction.

In November, it appears that at least one additional name could be added to the list of incumbent prosecutors ousted amid growing public attention on the excesses of the criminal justice system: Devon Anderson, Houston’s district attorney. Anderson won her first election for the Harris County seat in 2014 after framing herself as tough on crime while also trying to position herself as a change agent.

But the promise to reform an office long dominated by hard-nosed leaders has gone unfulfilled, with Anderson’s tenure as top law enforcer in the nation’s fourth-largest city punctuated by a series of scandals — including her office’s treatment of an emotionally vulnerable victim of sexual assault.

When Jane Doe took the witness stand in a Houston courtroom on December 8, 2015, she was emotionally unprepared to confront Keith Hendricks, a serial rapist who had violently attacked her two years earlier. She had a mental breakdown while testifying, fled the courtroom, and was found wandering in traffic. Doe — whose identity has not been made public — has bipolar disorder and symptoms of schizophrenia. She was admitted to a local hospital and the trial was recessed until January.

After she was discharged days later, the Harris County district attorney’s office had her arrested and jailed for more than a month — a move they said was necessary to ensure she would return to finish her testimony, and one that Doe’s attorneys argue in a federal lawsuit violated Texas law. And although the county’s jail has a mental health unit, Doe was housed in the general population where she was denied psychiatric care, viciously attacked by another inmate, and punched in the face by a guard.

News of Doe’s arrest made headlines this summer, and Devon Anderson went on the offensive, posting a video statement online against the advice of her general counsel. Jailing Doe was necessary, she said. How else could prosecutors be sure that a “homeless, mentally ill victim of an aggravated sexual assault would return to testify at the trial of her rapist when that victim was going through a life-threatening mental health crisis?” Unless she testified, Anderson said, the man would go free and Doe would be vulnerable on the streets.

The statement did not help. Mental health advocates noted that while Anderson acknowledged that Doe was in mental distress, she and her underlings did nothing to ensure that Doe would actually receive any mental health care while locked up. Victim advocates complained that prosecutors had only re-victimized Doe and worried that jailing a rape victim might deter others from reporting sexual assault. Still others noted that Anderson didn’t even have her facts straight: Doe had been homeless at the time of her attack, but she was now living with family in another county.

It was not the first time that Anderson seemed flat-footed in response to criticism. “If you have two doors right now, and number one is the right one and number two is the wrong one, she has a real knack for choosing number two, the wrong door,” said Tyler Flood, president of the Harris County Criminal Lawyers Association. “There’s been so many bombs that have been falling and they keep exploding in her lap.”

Anderson has also come under fire for declining to initiate an investigation or file a state bar grievance against a former prosecutor who withheld critical alibi evidence from lawyers defending Alfred Dewayne Brown, who spent more than 10 years behind bars — most of them on death row — for the killing of a police officer before finally being freed last year. She has been lambasted for declining to allow a new sentencing hearing for another death row inmate, Duane Buck, whose original hearing was tainted by racially charged testimony. And, amid an ongoing scandal involving the destruction of some 21,000 pieces of evidence — potentially impacting more than 1,000 criminal cases — came the revelation that Anderson had known about the problem for months but failed to tell prosecutors handling the affected cases — allowing them to continue to secure plea deals with individuals in cases where there was no evidence to support the charges. “It’s a big problem; a big problem,” said Flood.

Anderson was appointed DA in 2013 by then-Gov. Rick Perry to fill the vacancy caused by the unexpected death of the sitting, elected DA, who happened to be Anderson’s husband. In 2014, in a special election to cover her husband’s unexpired term, Anderson won handily in the Republican-leaning county with 53 percent of the vote over her Democratic challenger, former prosecutor Kim Ogg. With the 2016 regular election now less than a month away, however, Anderson’s future in the office is uncertain, and Ogg, who is again running against her on a reform-minded platform, appears poised to win.

Unchecked Power and No Transparency

Elected prosecutors enjoy unparalleled power in the criminal justice system, while facing little oversight outside the electoral process — and even there, it appears they scarcely face real scrutiny. “You basically have unchecked power and no transparency,” said Daniel Medwed, a professor at Northeastern University School of Law who studies wrongful convictions.

Prosecutors generally have great job security. Overall, 63 percent have been on the job for five years or more — in larger offices, that number is 70 percent, according to the Bureau of Justice Statistics’ 2007 report on the nation’s prosecutors. And when seeking re-election, incumbent prosecutors win 95 percent of the time, according to research done by Wake Forest University School of Law professor Ronald Wright, who tracked electoral outcomes from 1996-2006. “This evidence shows that voters rarely vote against incumbent prosecutors; more importantly, incumbents face a challenge far less often than incumbents in legislative races,” Wright wrote in a 2009 article for the Ohio State Journal of Criminal Law. “In such a setting, prosecutors have little reason to expect that they will have to explain their choices and priorities to the voters. The outcomes, in sum, demonstrate that elections produce low turnover and few challenges.”

But recent elections suggest that may be changing, said Medwed and David Alan Sklansky, a professor at Stanford Law School. A former prosecutor himself, Sklansky notes that traditionally there have been two lines of thinking about prosecutor elections. The first is that they’re “totally useless” and “superficial.” The second is that “they’re just a terrible idea … because why would you ever want prosecutors elected? You don’t want prosecutors thinking about politics, you want them thinking about justice.” But the recent spate of high-profile ousters of prosecutors from office may be “casting both of those old stories about prosecutor elections into doubt,” he said. “And that also provided fuel for the hope that prosecutors could be the engines of criminal justice reform.”

NEW YORK, NY - FEBRUARY 11:  Brooklyn District Attorney Kenneth Thompson speaks at a news conference concerning charges in the death of Akai Gurley by a New York City police officer on February 11, 2015 in New York City. Police officer Peter Liang has been charged with manslaughter, official misconduct and other offenses following what he claims was the accidental shooting death of Gurley in a Brooklyn public housing complex last year. Liang pleaded not guilty Wednesday in the November 20 death of 28-year-old Gurley in the Pink Houses, a public housing complex in East New York.  (Photo by Spencer Platt/Getty Images)

Brooklyn District Attorney Kenneth Thompson speaks at a news conference concerning charges in the alleged killing of Akai Gurley by a New York City police officer on February 11, 2015, in New York.

Photo: Spencer Platt/Getty Images

While advocates for reform have long believed that prosecutors hold enough sway to move the needle on reform, recent elections suggest that shift may finally be happening — a shift that, arguably, began with the 2013 election of Ken Thompson, Brooklyn’s first black district attorney, who died suddenly of cancer this month.

Thompson readily defeated incumbent Charles Hynes, who had enjoyed a more than two-decade run as the Kings County DA. This was no small feat, considering that no one had unseated an incumbent DA in Brooklyn for more than a century, as Sklansky notes in a paper to be published next year.

While it’s true that Hynes himself had once been considered fairly progressive — he set up the office’s conviction integrity unit to review and consider possible cases of wrongful conviction — he was eventually embroiled in controversy. Accusations of cronyism, prosecutorial misconduct, and preferential treatment dogged him. Thompson ran on a platform focused on equity, telling a reporter, “I’m going to make sure that the people who work for me know that the fundamental role of the DA is to do justice and we cannot have innocent people going to prison for murders that they did not commit.”

A Trend, Not a Blueprint

In his recent paper, Sklansky analyzes eight recent races where DAs have lost their re-election bids. He sees a trend — but not one political blueprint for victory.

For example, 26-year veteran Mississippi prosecutor Forrest Allgood (a perfervid defender of an infamous medical examiner and discredited bite-mark evidence) was ousted last fall by Scott Colom, a young attorney who ran a campaign centered on reforming the system. Voters have also unseated Tim McGinty, the Ohio prosecutor whose jurisdiction includes Cleveland. McGinty was elected as a reformer in 2012, Sklansky notes, and his undoing seems almost entirely attributable to his failure to indict the police officer who killed Tamir Rice in a city park in November 2014.

Holding police accountable was also a factor in prosecutor races in New Mexico and Baltimore, where Marilyn Mosby ran on a more traditional tough-on-crime platform, but also criticized the incumbent for being too closely aligned with the police department and for failing to indict officers after their fatal encounter with Tyrone West. Mosby has since been criticized for her handling of the prosecution of officers involved in the death of Freddie Gray.

Several races have focused more closely on prosecutorial misconduct, or on failings in the death penalty system, and some have been fueled by out-of-state campaign donations, notably by the billionaire George Soros. In other words, behind each victory there is a unique and myriad assortment of issues at play.

Still, notes Sklansky, the recent upsets are not geographically pigeonholed or confined to larger jurisdictions. And although they represent a fraction of the 2,500 prosecutor offices across the country, the fact that incumbent prosecutors generally enjoy such great job security suggests they are significant. “This is a small trend, but it is a trend. Maybe a dozen or so over the last few years, and it is steadily growing,” Sklansky said. “I think that suggests that there is a possibility [for reform] that 15 years ago didn’t seem to exist.”

In Houston, it isn’t clear what will happen on November 8. Major publications in the state have highlighted Anderson’s missteps, including the Houston Chronicle, which has strongly urged its readers to vote for Ogg. “Why should Kim Ogg replace Devon Anderson as district attorney?” the editorial board began its endorsement. “Let us count the ways.” In addition to jailing Jane Doe and stonewalling in the Alfred Dewayne Brown case, the paper noted instances of prosecutorial misconduct and Anderson’s “stoking” of “racial tension” in the aftermath of the killing of a local sheriff’s deputy by a mentally ill man.

Tyler Flood, the Harris County Criminal Lawyers Association president, says it is clearly time for a change in the Houston DA’s office. In fact, he said, his organization is currently in the process of preparing a state bar grievance against Anderson, citing her conduct in connection with the evidence destruction scandal.

Top photo: Harris County District Attorney Devon Anderson speaks during a news conference regarding the shooting death of Harris County Sheriff’s Deputy Darren Goforth on Aug. 29, 2015, in Houston.

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