Douglas County’s top criminal prosecutor, who hasn’t been challenged since taking office eight years ago, says she’s getting a bad rap for courtroom performance as she heads into the November election.

For weeks, Democratic challenger Charles Branson has been taking Republican Dist. Atty. Christine Kenney to task for losing criminal cases, saying she’s failed to win a guilty verdict in more than half of the felony cases she’s taken to trial this year.

It’s a claim Branson has repeated in speeches and campaign advertisements.

But Kenney says Branson is flat wrong. She says her office has won a conviction in about 75 percent of felony trials this year. It’s a rate that would put Kenney’s office slightly below average statewide but in line with nearby counties.

“This is a very powerful position in terms of decision-making and policy-making,” Kenney said of the District Attorney’s Office. “You need the people in this office to be completely straight with you regarding the facts. His ad is intentionally misleading to the public.”

So, who’s right?

It depends on how you define a victory at trial and what cases are counted as trials.

The real record

Branson is basing his claim on a summary report kept by the District Court Clerk’s Office that says there were 16 guilty verdicts out of 34 trials so far this year.

But the report Branson relies upon gives only the outcome of the first charge listed in each trial. And the total of 34 trials includes cases that ended in a plea or continuance after jurors were called to the courthouse — in other words, cases in which there was no jury verdict at all.

A Journal-World review of jury verdict forms returned between Jan. 1 and Sept. 27 found there were only 24 felony cases actually submitted to a jury for deliberations. Kenney’s record on those:

l In 54 percent, defendants either were found guilty as charged or guilty of at least one felony.

l In 21 percent, defendants were acquitted of all felonies but convicted of at least one misdemeanor. In one of those cases, the defendant later entered a felony guilty plea as prosecutors were deciding whether to retry the case, Kenney said.

l In 21 percent, defendants were acquitted of all charges.

l One trial ended in a hung jury on the only count. The defendant was later retried and found guilty.

Keeping score

Kenney said every case that ended in a conviction — whether a misdemeanor or felony, through a plea or a verdict — should be counted as a conviction for purposes of scorekeeping. That would put her felony-trial conviction rate for this year at 75 percent, even though there was only a misdemeanor conviction in some of those cases.

Kenney said the numbers proved Branson’s ad was blatantly false.

“There is no argument these are guilty verdicts,” she said. “There’s no way of getting around that.”

Branson said prosecutors should have a winning percentage “in the 80s” on felony trials. He said he didn’t think Kenney truly had a 75 percent winning percentage because in his view, only felony trials that ended in felony convictions — not those that ended in a misdemeanor conviction — should count as wins.

“She’s spinning her numbers to suit her needs,” he said.

Branson also said he stood by his advertising, despite what jury verdict forms said. He said it was correct to say there were 16 guilty verdicts out of 34 trials because that’s what the court’s report said.

“That is the official record I was going on, kept by the clerk of the Douglas County District Court,” Branson said.

Other counties similar

According to figures kept by the state, which tracks only the outcome of the first charge listed in each case, Kenney’s office stacks up slightly below average statewide but in line with nearby counties.

A Journal-World review of the state’s numbers earlier this year found that in 33 percent of Kenney’s criminal trials between 2001 and 2003, jurors or judges delivered a “not guilty” verdict on the primary charge. That acquittal rate put Douglas County dead even with Johnson and Shawnee counties and close to Wyandotte County’s 31 percent rate.

Kenney said it was unrealistic to think prosecutors should win every trial.

“I feel very strongly that if you are winning all of your trials, you are simply not trying the tough cases,” she said.

After being furnished verdict information by the Journal-World, Branson said Kenney’s misdemeanor trial success rate was worse than her office’s felony success rate. Of the 16 misdemeanor cases submitted to juries this year, nine ended in not-guilty verdicts across the board.

Branson said he should run an ad featuring that statistic.

“The whole purpose of the ad is to talk about the record and the fact that I believe the record is subpar,” he said. “I don’t think the District Attorney’s Office has been getting the number of convictions they should be getting.”