It's hard to believe that it has only been four years since the 2012 election, where Mike Anderson easily defeated Lloyd Oliver by 596,502 votes to 543,239. So many things have happened since that night in November that it seems to have filled at least twice that amount of time. During that election, 406,991 voters pulled straight ticket Democrat as opposed to 404,165 for Republican. About 386,415 people actually gave more thought to who they were voting for and didn't go the straight ticket route.
The 2016 race for Harris County District Attorney could not be more different than 2012. Mike Anderson was an even-tempered retired judge with virtually no controversy attached to him. Lloyd Oliver was an unqualified buffoon who had inexplicably won the Democratic primary over a much more qualified candidate. This year, Republican Incumbent Devon Anderson has several professional scandals attached to her Office and is not known for her calm demeanor under pressure. Her Democratic opponent, Kim Ogg, is a qualified politician with an impressive resume and some pretty powerful backing.
The two have faced off before in 2014 in a special election to fill the unexpired term of the late Mike Anderson. In that contest, Devon Anderson defeated Ogg by about 43,000 votes (354,539 to 311,648). Although that was a decent margin, it was worth noting that most of the Republican judges in the criminal bench races all won their races by margins of over 60,000. To some of us amateur political scientists, that closer margin seemed to indicate that Ogg had a decent number of crossover voters, which isn't surprising considering her resume with CrimeStoppers and her father's political and civil law ties.
As most of us know, there's a big difference in Harris County elections that occur in Presidential election years as opposed to non-Presidential years. The races are much tighter in Presidential years, which is concerning to all of the Republican candidates, but to Anderson in particular. Her closer margin in 2014, coupled with some bad press in the media, have most people in the Office concerned about what's going to happen on November 8th.
The vast majority of the Assistant District Attorneys working under Anderson want her to be re-elected, which is completely understandable. A change at the top gives uncertainty to all below. I should know. I'm not just a political upheaval spokesman, I'm also a victim! As one of my friends pointed out, the D.A.'s Office has been a picture of instability since Chuck Rosenthal's resignation in 2008. Over the past 8 years, there have been seven different people at the helm (Rosenthal, Bert Graham, Ken Magidson, Pat Lykos, Mike Anderson, Belinda Hill & Devon Anderson) which is a stark contrast to the 21 years that Johnny Holmes held the Office.
While Anderson's prosecutors are enthusiastic about her candidacy, she's lost some of her fan base in other arenas. The indictment of two anti-abortion activists for using false identification in a ploy to entrap Planned Parenthood alienated her hardcore right-wing conservatives -- and not in a small way. Those same hardcore right-wing conservatives who are likely to turn out to vote for Donald Trump might be skipping a vote in the District Attorney's race. Although I don't see them crossing over to vote for Ogg, a large amount of non-votes could be devastating.
For some of us, the indictment of the activists showed some courage. The sudden dismissals of those indictments without explanation a few months later -- well, not so much.
The recent Harris County Constable Precinct Four evidence destruction scandal also seems to have landed some negative publicity at Anderson's doorstep, although that wasn't something that Devon should be blamed for. Someone in her office did make the decision, however, not to inform the Trial Bureau (and subsequently the Defense Bar) about the evidence problems. There's no excusing that.
Most problematic for the Anderson Administration, however, is the suspiciously timed lawsuit from a sexual assault victim who was jailed on a writ of attachment during the trial of her accuser. As I've written here before, I think that portraying the Anderson Administration as unsympathetic to victims is a gross mischaracterization, regardless of what happened in that case. However, the end results are something that the Ogg Campaign has sunk its teeth into and won't let go. If any single issue sinks Anderson's re-election bid, it will be this one.
Kim Ogg has some baggage in her closet as well, although it doesn't garner the same amount of media attention that Anderson's missteps have. During the 2014 election, the Houston Police Officers Association accused Ogg of failing to protect the privacy of victims during her tenure as head of CrimeStoppers. She's also gained a lot of negative attention in the past week for taking a $500,000 donation from controversial billionaire George Soros.
The issue with Soros doesn't bother me all that much. Are we concerned that he's going to get some traffic tickets fixed here if Ogg wins? What concerns me more about Ogg is the fact that she's willing to promise prosecution for circumstances that she's knows aren't against the law. I agree with her that the D.A.'s Office should have disclosed the Precinct Four scandal much earlier than they did, but Ogg wants a criminal investigation into it for criminal charges for Official Oppression. That's a pretty big stretch. Great vote-getter, I suppose, but what's next? Attempted official oppression on all trials that end in a Not Guilty?
It frustrates me when Ogg goes down this road, because, as I've said before, she's better than that. She's a qualified candidate and she's smart, but this is just blatant pandering and she knows it. The danger in that is that it calls into question what she'll do in situations where two moron ex-cops come shopping around B.S. warrants. Will she go sign off on the warrant to curry favor with the defense bar? Will she abdicate her duty to get more votes? Things like this truly bother me.
At the end of the day, this has become a tough race for me to decide who to vote for. Ogg is definitely more progressive in her views on criminal justice, while Anderson clearly embraces a much tougher stance. Anderson recently blasted me on Facebook for endorsing Democratic judicial candidate Herb Ritchie by pointing out that he gave deferred adjudication on Aggravated Robberies and he had a backlog in his capital murder caseloads. I had endorsed Ritchie because I thought he was more neutral and gave a fair trial. She may not like the idea of the a judge who gives deferred on an aggravated case, but the law allows it and I don't know of a judge on the bench who has never done it. Clearly, she and I have a different view on what factors make for a good judge.
At the debate between the two candidates, Anderson pointedly said that defense attorneys will "say anything to get a case overturned." That's a broad statement, and one that illustrates why the defense bar isn't flocking to support her. Some of us pride ourselves on being ethical and honest even when defending people accused of doing terrible things. I've never subscribed to the theory that all prosecutors cheat. It is disappointing to hear that we have a D.A. that seems to think all defense attorneys lie.
Back in the 2008 election, I lamented how politics were infiltrating the Criminal Justice System and noted that they had no place there. Unfortunately that's exactly what happened under the Lykos Administration and have now carried on into the Anderson Administration. There is more of a focus on how things look than there was before, and that can present problems. An Office that moves so quickly to tout all of its accomplishments is one that opens itself up to enemies looking for failures. This has led to prosecutors being more reluctant to dismiss questionable cases or go to judges where the punishment might not be harsh enough. There is a lack of discretion at the trial court level that is ridiculous, because there are many, many damn good prosecutors there exercise good judgment. A now-former prosecutor once told me: "I don't know why doing the right thing makes me worry that I'm going to lose my job."
This campaign leaves me ambivalent about who to vote for. An election that should have been about two well-qualified candidates having meaningful discussions about the future of the Criminal Justice System has led to sound bytes and shameless political pandering on both sides. In an ideal world, that branch of the government would be immune to such things, but its not. I want job stability for my friends and good prosecutors at the D.A.'s Office, but I also want them to have the discretion that many of us had when we worked at the Office.
Devon Anderson is far from being the monster that the Houston Chronicle and others have made her out to be, but there are a lot of things that need improvement in the Office -- mainly focusing on internal policies. By the same token, Kim Ogg is a good candidate with some good ideas, but she needs to stop over-promising things on the campaign trail and get real about the actual job assigned to her. For my friends at the Office who are understandably worried about their jobs, Kim Ogg is not the vindictive politician that Lykos was.
In the end, neither candidate is perfect, but nor are they disastrous. They are just like any other two political candidates in a major race.