Marc Miller likes to joke that district attorneys lose elections only slightly less often than leaders did in the old Soviet Union.

The quip isn’t too far from the truth, though, the University of Arizona law professor said. A recent study of chief prosecutor elections across the nation found that when incumbents run, they win 95 percent of the time.

The primary reason for that success is that incumbent prosecutors aren’t even challenged in 85 percent of elections. In jurisdiction after jurisdiction, prosecutors are allowed to coast into another term without having to explain how their offices have performed, Miller said.

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MEASURING JUSTICE

 

This is the second of two installments in the Tribune-Herald’s examination of how the McLennan County district attorney’s office decides which cases to prosecute. Today’s story looks at what experts say voters should consider before choosing a district attorney.

• Read: Part 1
  of the series

McLennan County District Attorney John Segrest has held his post longer than any other district attorney in local history. The last time he was challenged on the ballot was more than a decade ago. But that will change next year, when Segrest will face an opponent in the November general election.

Still, the odds are not in favor of voters getting the information they need to determine whether Segrest or a challenger is better for the job, said Ron Wright, a Wake Forest University law professor who wrote the election study and has partnered with Miller on research projects. Even when prosecutor elections are contested, the campaigns tend to focus on trivial matters, he said.

“What they often talk about is single cases,” Wright said. “They talk about their lawyering skills and background. What you are far less likely to see is a discussion about the overall output of their office, their priorities.”

That is worrisome, Wright and Miller said, because chief prosecutors occupy one of the most powerful positions in the criminal justice system. The discretion they have to prosecute cases or reject them gives them more control over the fate of those accused of a crime than a judge or jury.

Elections offer one of the only checks on that power, Miller and Wright said. They noted that when prosecutors have an opponent, they win only 69 percent of the time.

Segrest faces challenge

The upcoming election will be Segrest’s sixth time to run for the office. But some observers say it will be the only time he has faced a real opponent since his initial campaign.

Segrest, now 59, first ran for district attorney in 1990, beating incumbent Paul Gartner. Gartner had run for the post two times before and lost. He got the job because a previous district attorney quit and Gartner was appointed for the remainder of the term.

The next time Segrest had an opponent was in 1998. No one filed to run against him in the Democratic primary. But two people, Bret Coody and Mike Flynn, ran as Republicans.

Flynn, a civil attorney who had worked as a military prosecutor, won the primary. He wasn’t considered much of a challenger in the general election, though, because he had never handled a case under Texas criminal law.

Other than that, Segrest has been unopposed — until now.

Waco defense attorney Abel Reyna, 37, announced earlier this year that he is seeking the Republican nomination for the post in the March party primary. Segrest is a Democrat, and so far, no one else has entered the race. If that holds, it means the two candidates won’t square off until the general election in November.

The main reason incumbent prosecutors don’t often draw election opponents is because few people are qualified and willing to run against them, Wright said. Candidates must be attorneys and be willing to earn substantially less money than they could in the private sector, he said.

On top of that, defense attorneys who run have to worry about strained relationships with peers if they lose, Wright said.

Waco defense attorney Abel Reyna (right) has filed to run against McLennan County District Attorney John Segrest in next year's election. Reyna, 37, has been endorsed by two local law enforcement associations. (Jerry Larson photo, file)

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John Segrest, 59, has been district attorney longer than anyone in McLennan County history. His current term ends in January 2011. (Rod Aydelotte photo)

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The stakes are even higher for attorneys in the prosecutor’s office. They have to challenge their boss and risk returning to an uncomfortable position if they don’t win, he said.

That quandary is something voters can’t do much about, the experts said. But the public can prevent the other major cause of prosecutor election shortcomings — candidates not being asked the right questions.

In particular, incumbent candidates need to be held accountable for how their office has performed, Wright said. Questions that should be asked include:

* Is the prosecutor being thoughtful about priorities for his office, or is he just going with the flow?

* To what extent does the prosecutor hold other attorneys in the office accountable for the choices they make? How does he do that — for example, does he sample their work periodically?

* Is there general waste? Are resources being thrown at crimes that don’t really deserve them?

* How accurate is the office in evaluating cases? Put another way, how often do the crimes defendants are convicted of match up with the crimes they were initially charged with?

Miller, who has extensively studied prosecutor decision making, said he would add these additional questions:

* What guidelines govern whether prosecutors pursue cases or decline them?

* What percent of the cases that prosecutors receive from law enforcement are pursued?

* For cases not pursued, what are the general reasons?

Getting answers

Getting the answers to those questions can be next to impossible in some jurisdictions, though, Wright and Miller said. An astonishing number of prosecutors keep little to no information about certain office operations, they said.

But voters still need to ask the questions, the two professors said. If prosecutors don’t keep data needed to gauge their performance, that is something voters should take into consideration, they said.

That’s especially true, the experts said, since without meaningful inquiry, candidates tend to focus on the wrong issues. For example, they like to talk about general moral character or their legal background.

Although voters certainly can consider such qualities, they are less important in prosecutor races than other types of elections, Wright said. With positions such as mayor or governor, voters have to rely more on candidates’ general character because there is no way to know what issues will be most important during their term. Chief prosecutors, however, face a fairly predictable workload with a known set of challenges, he said.

Candidates also like to talk about how well the prosecutor’s office works with law enforcement agencies, Wright said. While that’s a more valid topic, it doesn’t tell voters much, he said.

“Unless voters favor consensus itself as a value in the criminal justice system, discord between the prosecutor and various other system actors does not reveal which of the parties to the conflict are most closely in line with the wishes of the voters,” Wright wrote in his study.

The closest most candidates ever get to substantive issues is to talk about things such as a backlog of cases or how long it takes for cases to make it through the system, Wright said. Such discussions tend to fall short, however, because the issues behind the numbers are never explored. For example, a prosecutor could manipulate case backlog numbers by instructing his attorneys to simply decline or dismiss more cases, he said.

Campaigns yet to start

Neither Segrest nor Reyna has started to actively campaign yet. But in recent interviews with the Tribune-Herald, they laid out the themes they plan to focus on during the race.

Reyna said there are three main improvements needed at the district attorney’s office. For one, he would increase information sharing with law enforcement, he said. He would ask to be kept apprised of big investigations, as well as crime trends. That way, his office could use aggressive prosecution to help squash burgeoning problems, he said.

“You’ve got to create a deterrent,” Reyna said.

Second, Reyna said, he would improve the feedback given to police, both while they put together cases and after the investigation is completed. Current communication about cases is lacking, he said, and leads to cases being tossed or leniently pleaded.

More of a presence

The third thing he would do, Reyna said, would be to have more of a presence, both inside the office and out in the community. He would hold assistant prosecutors more accountable for their performance and level of communication with police, he said. And he would get out in the community to hear what is going on and find out what people’s concerns are.

“Your strategy has to continually change to meet the needs of the county,” Reyna said.

When Segrest first ran for office two decades ago, he conducted a fairly feisty campaign. For more than a year before the election, he looked through court records and talked to defense attorneys about Gartner’s handling of cases. He compiled that information into an “ammo book” and used it to criticize Gartner for things such as offering lenient plea bargains and taking too long to make decisions.

This go-around, though, Segrest plans a simpler campaign. He said he will stick to a single theme — that he is an experienced, known commodity. The main points he will try to get across to voters, he said, is that he has put together a good office, manages it well and has the public’s interest at heart.

Talking to the public

Getting into the nitty-gritty of office operations is not something he intends to do, Segrest said. One reason for that, he said, is that prosecutors have limited resources to communicate with the public. Even when they raise money for television spots or billboards during election periods, the amount of information that can be conveyed is limited, he said.

Also, Segrest questioned whether voters want to hear detailed explanations of how his office works. The public tends to have a limited attention span, he said, and would likely find in-depth explanations of office operations boring, he said.

“It’s not ‘Law & Order.’ It’s not the 30-minutes interesting stuff,” Segrest said.

Plus, people don’t typically care about general guidelines, Segrest said. They are more interested in specific cases, he said.

“You just can’t get into the specifics of 10,000 cases per year,” he said.

Segrest also said he sees little point in trying to explain the constraints prosecutors face because of limited resources.

“All that is is just excuses,” he said. “You just do the very best job you know how to do. That speaks for itself.”

cculp@wacotrib.com

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