Accountability, Experience, Proven Competence

This message is for Democrats, who in this primary by their selection on Tuesday, May 19th, will likely be casting the die that will determine both the result in November and the future of the Centre County District Attorney's Office.   Each time I have heard someone remark that, given the current levels of criticism of DA Madeira's administration,  anyone chosen as a Democratic opponent is likely to prevail in November, it has been with a sense of deep misgiving as to what November will bring.   There is no question that Madeira needs to be replaced.  A politicized DA Office, regardless of the Party of its occupant, is a detriment to the public.  A DA's obligations of evenhandedness, forthright communication with the public, and decisions made in the public interest are absolute.  Madeira has failed to honor them and instead treated the office as a source of personal power.  But I would strongly disagree with any assessment that unseating him will be a cakewalk.   And that is particularly true if there is a dramatic disparity in experience levels between the incumbent and any Democratic contender.   A District Attorney Office with weak skill levels, a tendency to engage in indiscriminate deal-making and a willingness to place individual interests above the public interest, very simply, represents an advantageous situation to many, and will not likely be given up without a fight.  Whether you have decided your vote for Tuesday or are still considering the options, I hope that you will read what follows and think seriously about what will likely follow the selection on Tuesday. 

Looking at history:

DA Madeira has a large base of support which is personal to him and not likely to be easily swayed by criticism of isolated decisions he has made.  In the 2005 election cycle, this base turned out in force, both to vote and to man virtually every polling place, in the contested primary and in the general election.  Madeira's opponent in the 2005 primary was defense attorney Robert Bascom.  Bascom entered the race in a strong position, having come within 1,011 votes of unseating Ray Gricar in the 2001 primary, despite Gricar's reputation, 20 years in office and four previous runs.  Bascom had a large base of supporters, he and his wife were well-known and liked throughout the general and legal community, he was personable and articulate, and he outspent Madeira during the campaign by more than 300%.  Nevertheless, at some point during the brief primary cycle, the waters shifted dramatically.  It was not simply that Madeira ultimately defeated Bascom, but that he did so not just in the areas where he would be expected to have run strong, but by very similar margins across the County.  The course of the 2005 Republican primary provides a lesson which Democrats cannot afford to forget in this election. It bespeaks a broad and well-functioning level of political organization by the incumbent.

At every 2005 primary event, Madeira's approach was to focus on Bascom's time spent working in criminal defense and compare it to his own 'unblemished' record of continuous involvement in law enforcement-related/prosecution work. It was an approach which worked well. When the post-primary matchup pitted me against Madeira, the strategy changed, as it had to because my length of involvement in prosecution and breadth of trial experience far exceeded  Madeira's.  Post-primary, the incumbent's focus shifted to minimizing the importance of such experience and claiming superiority in 'leadership' (coordinating drug investigations across several counties) and his 'administrative skills' (said coordination and managing the budget given to his satellite office by the Attorney General). These factors were coupled with the contention that Centre County had a burgeoning and severe drug problem, which urgently required Madeira's skills in this area of endeavor, and that there was a compelling need for the County to institute a 'drug court,' where significant drug offenders would be closely monitored by a designated Judge.

Campaign rhetoric in most cases is difficult to impossible for the average voter to 'check out' as to what is actual fact and what is exaggeration or confabulation.  I have not visited the AG office where the incumbent worked for many years, but at least at its inception it consisted of only Michael Madeira and a secretary. The Office he was elected to head had a staff of 14, with 7 Assistant District Attorneys, most of whom had more general and trial experience than he did. There was no logical reason to believe that Madeira's 'administrative experience' at the AG Office would convert to competence in supervising the Centre County District Attorney's Office.  But he said that it would.  And he was elected to do that job. We have had three-plus years to compare rhetoric with results.  Madeira touted his grand jury experience.  As far as I am aware, not a single case has been submitted for grand jury evaluation since he took office. What of the urgent need for a drug court?  According to Madeira's own recent statements at two forums held on April 29, 2009, that matter sat idle from 2006-2008.  In 2008, he indicated that he and a Judge began monitoring drug cases which would qualify for the drug-court model, that he found there to be an insufficient number and that the idea was abandoned. Such is the nature of campaign rhetoric.

Learning the 'cost' of tossing a coin:

In the 2005 general election, only 28% of the entire County electorate turned out to vote.  I can remember finding the apparent apathy toward who would become the next District Attorney unfathomable, given that it was the first change of DA leadership in 20 years and came only months after DA Gricar's unexplained disappearance.  In retrospect, I imagine it was in part the apparent 'equality' of the matchup.  In reality, my own prosecution and trial experience was radically different from Madeira's, but in the campaign setting competing experience claims tended to be reduced to a numbers equation.  And in pure 'numbers' the experience levels appeared to be similar -- 13 years in his case and at that time 17 years in my own.  After editorial board interviews of both candidates, the CDT offered its assessment that both candidates appeared fully qualified to fill the office, and offered no endorsement of either.

Having lived the results of tossing a coin between two apparently similar candidacies in 2005, I believe very strongly that in this election Centre County voters of all Party persuasions will be looking for something more substantial than rhetoric.  And specifically that this election will focus on the following:  (1) a record of proven competence,  (2) a record of successful prosecution and trial experience,  (3) a record of being willing to 'go the distance' in cases of serious crime rather than deal-making, and  (4) a record of strong personal commitment to the Office, to the public and to individual crime victims.

If neither the incumbent nor the Democratic opponent can present a strong record of accomplishments in these areas, I suspect this year's election in November will be another in which turnout is minimal, a coin tossed and very possibly the incumbent re-elected, despite his current difficulties.  If the Democratic opponent can offer such a record and the incumbent cannot, obviously the prospects are brighter in terms of a change of administration.

Looking 'down the road' post-primary:

In a recent Democratic candidate forum (Foxdale), I raised information from court records that neither of the other Democratic contenders had tried a jury case during the entirety of DA Madeira's tenure.  The response in one case was that 'if I get what I want without going to trial, I don't need to go to trial'. The response in the other was that 'this job is a lot more than just having done a bunch of trials.' 

Let me explain first why I raise objections to these responses.  At all Pennsylvania criminal trials, the defense goes first in presenting its closing arguments, followed by the prosecution, as it is the prosecution which has the burden of proof. Because the defense does not have 'the last word,' often in trial I have heard the defense ask the jury to consider what the prosecution 'may say in its closing' and 'how the defense might respond.'   My purpose in this section is similar.  Democrats are about to 'close' in a primary which will determine the opponent to the incumbent in November.  Next to nothing is known at this point in terms of what the incumbent's approach will be, when it comes to  the other Democratic primary candidates.  He has no primary opponent and has in forum appearances simply defended his record.  My goal is therefore simply to ask that Democrats consider what happens 'down the road.'

If active involvement in trying cases is a secondary or unimportant issue in selecting an appropriate District Attorney, then why should the paltry number of cases tried during the incumbent's administration, or the fact that many were lost when tried, be a compelling source of criticism of his stewardship?  If getting what one wants in lieu of trying cases is a sufficient explanation for recourse to deal-making, how is the incumbent's identical rationale for why the DA office has tried few cases under his administration to be distinguished?  There are certainly real arguments to be made based on the differences in the duties of defense counsel to his or her clients and a prosecutor's duty to the public.  However, in the context of a campaign of competing soundbites, such subtleties are often lost. 

Concerning the issue of prosecution experience, the incumbent has several times over the amount of both of the other Democratic contenders.  If the issue is consistency of commitment to prosecution over the long-term, both of those contenders are subject to the same approach successfully used against Bascom in the 2005 primary.  If the issue is expressed zeal for a return to the life of a prosecutor, a challenge can be mounted about the failure to pursue the position in 2005, when it was wide open and the prosecution experience of the respective contenders was 4 years less stale.  

In his recent WTAJ soundbite, Madiera offered the observation that going after an incumbent with second-guessing and 20/20 hindsite is 'easy and to be expected' but not significant -- analogous perhaps to the tiny barking dog berating the much larger one from behind the safety of a 6-foot fence.  He also reminded the public that his potential opponent's rhetoric notwithstanding, he -- and only he -- has actually 'done this job.'  However dubious his performance, the statement is accurate.  And there is irony in the fact that now, having 'done the job' of supervising 7 Assistants and running a large office, he can claim superiority in 'administrative skills' to an opponent whose claim to administrative skills is based on part-week supervision of one other Assistant during some portion of a 5-year stint as a prosecutor. The very fact of his incumbency offers distinct advantages, as it does with any incumbent:  an insider's ability to describe the job, casting accusations by opponents as arising from lack of familiarity with how this particular Office 'actually works', and an incumbent's ability to proffer explanations for isolated case dispositions and cast them as aberrations against a larger cache of 'successful prosecution,' pointing out, as he has already done many times in the media, that the public is little aware of his work other than in cases which were heavily criticized in the media.

The Matchup:

If the incumbent is to be defeated in his bid for re-election, it will not be done on general calls for change or a return to integrity or credibility.  Nor will it be done by recourse to bringing up a handful of particular cases of the thousands which have come through the Centre County District Attorney's Office during his tenure.  It will not be done by bold statements and posturing, both of which are areas of particular strength for the incumbent.  And it will not be done by assuming that the public is uniform in condemning his performance as District Attorney.  Centre County has a large and diverse voting population.  Six months in any political contest can be a 'lifetime,' as we have seen many times at the national level.  Time to be more forthright with the public. Time perhaps to mend fences with law enforcement. Time for the dust to settle. Turning aside Madeira's bid for re-election this year will only be done by time, effort and the ability to establish to the satisfaction of the Centre County electorate as a whole that Madeira's record, in its entirety, reflects a consistent and ongoing pattern of bad decision-making, not isolated missteps. To be able to do that successfully requires an intimate knowledge of the Centre County District Attorney's Office, how it is supposed to work, in what areas it has declined, and to successfully counter 'explanations' which standing alone may sound quite plausible to the lay public.

I am the only Democratic primary contender whose prosecution experience exceeds Madeira's, whose trial experience is 400-500% greater, whose knowledge of the workings specifically of the Centre County District Attorney's Office equals or exceeds his, and whose breadth of knowledge across many different areas of criminal law and specialized expertise far exceeds his. I am the only contender who cannot be argued during the general election to have left a prosecution career by personal choice in order to spend a decade in the private defense bar, only to discover a long-latent desire to return to public service in a year when the incumbent appears to have less than stellar prospects of being re-elected.  And I am the only contender who cannot be plausibly argued to be motivated by personal ambition or establishment of a 20-year dynasty such as DA Gricar's, but rather simply by commitment to restoring the Office in which she invested nearly two decades of her life.

A successful District Attorney is not a purveyor of orders and directives, but someone who has a commitment to effective prosecution and to the public, someone who knows how to do what is asked of those who work under him or her, and who insures that those to whom his or her own authority is delegated (Assistant District Attorneys) are prepared to act in a manner consistent with that philosophy -- to reflect credit on the Office itself and to acquire increasing levels of confidence and job satisfaction. 

When you vote in the primary on Tuesday, May 19, 2009, I hope that it will be against a backdrop of having looked fully down the road beyond the primary.  Because not only is experience and the judgment it brings the best predictor of likely success in the Office.  In this election it is also the best means of winning it.