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.”
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.
Justice in Harris County? That’s about as realistic as no traffic on Loop 610 at 5pm. I was lucky enough to be falsely accused of a crime in Harris county, then for several months intimidated and manipulated into a plea deal by not only the prosecutors, but by my own court appointed attorney. If that wasn’t enough, after falling victim to my own naivety, learned how my court appointed attorney’s husband was then running for the D.A’s top position.
Yeah, there’s no conflict of interest with that, right?
Now, I am much more informed and aware of the countless lies told, agendas hidden, and inhuman games played with the “human capital” in plain sight of today’s courtrooms. It’s not about rehabilitation, or even punishment….it’s about profits. I’m sorry, when the private and state run prisons profits connect directly to the rise and falls of their shares….which is determined by how many are entering and exiting those prisons….it is a broken system. It’s going to take a lot more than simply voting on a new Gatekeeper….we need a new GATE.
Devon Anderson is one of a long string of hardline DA’s in Houston. The downfall of this attitude has been a long time coming in Houston, a tough town with more than it’s share of crime. That said, one can’t fairly explain this history of overzealous DA’s as the result of a republican leaning county. It actually leans more democrat, the city being overwhelminly so. A better descrition might be a swing county. I say this because I think it is important to understand the election of these people in the past has come from a “law and order” attitude endemic to Texas. Thankfully it seems to be changing.
Forbes ranks Jacksonville, FL, as one of the most conservative cities in the US. Angela Corey was overwhelmingly defeated in a closed Republican primary. Her own conservative base removed her from office. She was never really popular with progressives and her antics led to their antipathy but they played no real role in her ousting. Consider the significance of this!
Justice is not the criminal justice system’s purpose, it’s purpose is punishing people for being poor. The “plea bargain” is the root of most of its evilness. Plea bargaining allows it to process and imprison vast numbers of poor people, turning it away from proving guilt or innocence and into a factory line of state sanctioned abuse.
Modern prosecutors need not depend on “the rack” or pulling out fingernail. Modern prosecutors have discovered fear works just as well to get self confessions.
Direct words from the Constitution (5th amendment): “nor shall be compelled in any criminal case to be a witness against himself.”
The plea bargain “compels” a person, through fear, to be a witness against himself, the same as torture.
That is an evil, but there are multiple competing for worst. Cops are allowed to, and constantly do, lie to suspects and witnesses. They can convince some poor schmuck s/he can easily be proven guilty with all this bullshit technology (that they made up) or eyewitness statements (that they made up), & etc. An innocent person, not sophisticated in the ways of cops, is likely to plead to anything to avoid the decades in prison the cops are saying they’ll get if they don’t confess — or even just to make the haranguing end.
Also, the state has vast resources it brings to bear on the accused, resources the accused cannot begin to match. And, the forensic scientists generally are part of law enforcement and not neutral. Paying for one’s own is prohibitive for most, or for one’s own experts.
Then there’s the reality that — almost alone among categories of lawyers — state bars almost never discipline prosecutors, not even for the worst violations of ethics and laws that affect the life and liberty of citizens.
There’s just so much grossly wrong it’s hard to cite just one “most evil.”
In my personal experience….prior to entering the court…my attorney coached me by explaining that during the formalities of my “plea deal” in front of the Judge, he would ask me, “Are you pleading guilty because you ARE guilty? Or are you pleading guilty because you have been instructed to do so?”
My initial response was, “..so, I then say because you told me to?”
<—–glared at with disgust by attorney.
Also, roughly 90% of all convictions are a result of a plea deal. It's so corrupt…it ruins lives…..mine included. Everyone involved in this process….should do what Bill Hicks suggested for those in Marketing.
One has to ask, though, where the judiciary is in all this. Just as many local jurisdictions elect prosecutors, so they elect (retain) judges as well as police chiefs. With police, prosecutors, and judges aligned — all catering to the whims of the electorate, where does justice for a defendant fit in?
In spite of the Pledge of Allegiance – America’s never had “justice for all,” and it ONLY “fits in” the wealthy man’s wallet. It’s unfortunate the sociopathic human failings of judges are frequently little different from that of cops, politicians or even the criminals they pass judgment on.
This is such a fantastic piece.
I don’t know when her election is, but I hope Marilyn Mosby loses. I think she will.
She’s Baltimore, but I’m not so sure she deserves to lose: Mosby announces slate of proposals to reform process for investigating, prosecuting police misconduct
My view of her is colored by the way she handled the Keith Davis case:
https://www.youtube.com/watch?v=MiwVnxp_bOc
WaPo: Homicide detective’s book describes ‘How the Police Generate False Confessions’
When the Supreme Court ruled cops can lie to witnesses and suspects, this became inevitable.
So one more example of how we must tell the truth to the government, but they can lie to us?
So one more example of how we must tell the truth to the government, but they can lie to us?
Except it’s not. In the above case the officer (government) told the truth about a false confession he elicited from a suspect (one of “us).
Admittedly, that is a rare situation, at least on the part of the government. But I’ll take it because it’s just one more piece of information in a growing pile of evidence that shows that the system itself is hugely corrupt and manifestly rife with injustice.
fantastic report. many thanks. should be required reading in high school.
Your portrayals are indicative of persons that may have personality disorders who seek public office for the security of power as compensation for their inability to manage their deep seated self rejection which they then sadistically project onto others to gain some personal satisfaction to fill that void they harbor. These types will dance and prance with all their makeup and masks of appeasement which objective they pretend to themselves as a hurdle for success instead of the humble modest willingness to serve good as it should be – substituting “public” for “good” – public as in “popular”.
Failing to understand the deficit ridden personalities seeking office, the public is easily fooled by these wanna-be glory-hogs who gravitate like needles to a magnet for their rescue nets which provide them the glamour and accolades from similar deficit ridden glory hogs who then come together like a bunch of Erdogans. For them, being challenged is viewed as an insult or attack by the enemy and being pushed out of their foxhole is like dying. While the population is being drained of life support resources and conditioned to accept armed conflict as a first choice resolution, crime will continue and the young lawyer graduates will strike out to make a killing.
Hard on Prosecutors?? I have never heard of one being reprimanded – or admonished. GRAND JURY testimony is SECRET, so you can not tell if they are doing the job or being paid off. Senator Ted Stevens (R-Alaska) was tried and convicted by Republican Prosecutors by withholding evidence that afterwards cleared him…..No Reprimand – or punishment in any way.
EXCUSES ARE NOT GOOD PROSECUTIONS…..ie….ERIC HOLDER & Wall Street to later return to Wall Street for a corner office and job…..HONEST??
And yet voters are about to promote California AG Kamala Harris to the Senate. Afterward, the people of California will likely pay out a hefty settlement to the founders of backpage.com for Kamala Harris’s trampling of the 1A. Nothing like favorable news coverage and a perp walk to boost ratings a month before the election.
Great story, Jordan Smith,
I was just going to write about Ms Harris. I have nothing in support or against, because I know too little about her except the curse of death: she is the Dem’s pick.
I looked at her website – which mentions the environment more than I imagined, but it’s meaningless to me. I don’t know anything about her. She didn’t respond to questions about refusing dark $, etc.
I promise to watch the recently televised debate on C SPAN.
Since I wasn’t impressed with the positions she stressed, I wrote back on her announcement/donate to ME email a myriad of questions about my concerns. The camp wrote back thanking me for my support.
Remember that AGs support the Gov and except for the things that I hate (anti-BDS leg, his delay on Aliso Canyon, etc ), I have a hard time offering a firmer opinion. I know national politics far more than state.
Today, Amy Goodman covered a lot of stories being ignored by the 2016 election nonsense. News today about the 66-y.o. Black woman killed in Brooklyn yesterday:
http://massappeal.com/nypd-officer-didnt-follow-procedures-when-he-shot-and-killed-emotionally-disturbed-66-year-old/
I was just going to write about Ms Harris. I have nothing in support or against, because I know too little about her except the curse of death: she is the Dem’s pick.
I don’t know a lot about her either. WRT this article, I found this:
http://www.nytimes.com/2016/05/29/magazine/kamala-harris-a-top-cop-in-the-era-of-black-lives-matter.html?_r=0
Those paragraphs are rich with links to other stories in support of the assertions. If someone’s going to be voting on her candidacy it might be a decent place to start accumulating info.
I’m not one to believe that a person’s friends/family are necessarily anything more than peripheral indicators of how a given person may think/act – my father being a rabid Republican and myself being almost the polar opposite – but regarding her being the dems pick, it probably wouldn’t be remiss to note this regarding her younger sister (also from that article),
Nothing like favorable news coverage and a perp walk to boost ratings a month before the election.
The pro-Clinton, anti-Assange/Wikileaks contingency that has been asserting since the beginning of the DNC/Clinton campaign email leaks that information that may interfere in a US election should be withheld until after said election – or never produced at all since its stolen – will be along shortly to agree with you, I’m sure. [/snark]
some good news then
“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;”
Warning shots, “Limbshots,” etc are all illegal for a reason. Firing a gun is an act of deadly violence, and you can only use deadly violence if death/severe wounding is the only way you can see to stop your own imminent death/severe wounding/rape/robbery/kidnapping. Firing when you’re not 100% sure that you need to kill or cripple is excessive force for a situation you ADMIT didn’t need lethal force.
(One exception that I can think of off hand, a warning shot into the ground if the attacker has another victim grappled and they’re rolling around is acceptable since you can’t safely shoot the perpetrator.)
And you know that none of that was possibly going to happen to her because you were there? It must be nice for you to be so self assured that there is no circumstance or set of circumstances or history which would suggest to a prosecutor to consider the whole picture, but rather just go for the twenty years and let ’em rot.
Here is the man she was afraid of speaking–under oath:
Essence
She clearly didn’t think the only way to stop those things from happening was to shoot HIM, ergo she should not have pulled that trigger. You keep your finger off the bang-switch unless you’re absolutely certain you need to put a bullet into a person. (Or animal i guess) that’s the only self defense gunshot allowed. One that is fired in the full knowledge that “This will probably kill someone but it’s him or me.”
She may have been slightly overcharged, but she did still need to be charged, warning shots are almost never okay, and definitely not okay for SELF defense, only defense of others who are already grabbed.
Marissa Alexander was charged for firing her weapon as a warning shot in Florida, a state where “stand your ground” laws allow George Zimmerman to kill Trayvon Martin and get away with it. Had Marissa Alexander shot her husband to death, she’d have been protected by that law. But this same woman who was unable to successfully prosecute Zimmerman for murder found the time to put away Alexander for 20 years.
And you’re defending this behavior. You’ve got to be fucking kidding me.
http://www.freemarissanow.org
Marissa Alexander, Democracy Now
https://www.youtube.com/watch?v=nQPGqCODA5o
Marissa Alexander, TYT
https://www.youtube.com/watch?v=b2TcVVkgmGY
Arbeit, you make it so clear: guns are for self defence unless the person with the gun is a black woman.
And they shouldbe illegal. Marissa Alexander, however, was a prime candidate for prosecutorial discretion, not the absurd and abusive overcharging and persecution that Alexander endured.
I’m an unapologetic critic BLM for injecting identity politics into the debate, but as someone who’s worked in a crisis support center for mental health and drug rehab, I can attest that criminal justice reform is absolutely needed. And it’s hard to argue with these results.
I’m an unapologetic critic BLM for injecting identity politics into the debate,
You appear to have inverted the chain of events here. There is a large and growing body of studies and reporting that is explicitly showing, and the courts are agreeing, that it is law enforcement that has had identity politics at the very core of policies that have been proven ineffective. After all, it was not BLM that pushed for policies such as Stop and Frisk (bolding mine):
http://www.usnews.com/opinion/articles/2013/08/12/is-new-york-citys-stop-and-frisk-policy-unconstitutional
At some point, enough of the citizenry was going to themselves have been victimized by a prosecutor who destroyed their lives, or is family or friends with someone else who was. “Tough on crime,” “Law and order,” all looks super cool, until it’s you or your loved ones being forced to plead to some crime — and become a convicted criminal –or face a trial that could result in decades in prison.
Eventually, enough people were convicted by lying informants or lying cops, or enough are friends/family of those who were. Eventually, when enough white people have been affected, the hue and cry for reform will carry the day. A prosecutor setting their sights on you is often life-destroying, financially and emotionally. Even if you never spend a day in prison.
There just had to be a critical mass of the “right” people experiencing all this.
“Tough on crime,” “Law and order,” all looks super cool, until it’s you or your loved ones being forced to plead to some crime — and become a convicted criminal –or face a trial that could result in decades in prison.
Yes, or unjustifiably killed, as you know happened to a member of my family.
I care for my elderly mother and have been traveling to my hometown quite a bit during this election season. In yards all over the city I am subject to signs sporting the name of the prosecutor who tried to put my sister in jail on spurious charges aimed at covering for the massive incompetence of city police and the SWAT organization that killed her longtime companion due to lying CIs who, to this day, have never spent a day in prison for crimes they admitted to while implicating my sister’s family because of personal animosity.
I only wish there was someone in that town that was devoid of enough corruption to run against her, but that woman will probably die in office, still trying to put people in prison for mere suggestions.
Looks super cool? Only to assholes. All decent people instinctively hate this stuff.
It’s time to start jailing these prosecutors.
This is how change most often occurs. Information keeps coming out and finally, gradually, people see it for what it is and start to re-evaluate. Not everyone, of course, but sometimes enough.
Thank you, Jordan for being part of that, for your persistence in the face of overwhelming governmental institutions that many consider completely immune to reform/replacement.
Today I learned what “perfervid” means. Thanks Intercept! In addition to learning about systemic abuses of power and various injustices, you’re also teaching me vocabulary words that I’ll be too self-conscious to try and use in conversation!