FAQs and fact-checks in the race for Douglas County district attorney
photo by: Contributed Photos
With the Democratic primary election just days away, the Journal-World is taking a look at some remaining questions in the race for Douglas County district attorney.
Defense attorney Cooper Overstreet, University of Kansas law professor and special prosecutor Suzanne Valdez and incumbent DA Charles Branson will face off in the primary on Aug. 4, which will most likely decide the race as no Republicans filed.
These topics and questions are sourced from what the Journal-World has heard from readers seeking clarity in a race that has multiple candidates from whom to select for the first time in nearly 16 years.
How much experience do the candidates have with jury trials?
A vast majority of criminal cases are settled before they reach a jury trial — all but roughly 3% of felony cases filed in Douglas County District Court last fiscal year, for instance. However, that small minority typically includes some of the most serious cases, such as sex crimes and murders.
Overstreet said he has first-chaired or worked solo on 10 jury trials, including seven felony cases. He said that in four of those he obtained acquittals. He has also served as co-counsel or second-chaired nine other jury trials, he said. He joined the Swain Law Office as a law clerk and then went into private practice with the firm after he passed the bar, working there for about six years until he left last month. He has not worked as a prosecutor.
Valdez said that from 2005 to 2008, she was a special assistant Wyandotte County district attorney. In that time she tried one case on her own and handled four or five as second chair. She is now a special prosecutor who handles cases with conflicts for employees of that office, and she said she tried the last jury trial right before COVID-19 hit. She has been a full-time professor for 20 years, however, and she said she has not worked full-time as a prosecutor.
Prior to being elected DA for the first time in 2004, Branson worked in private practice for almost nine years, and he said he handled 20-plus jury trials in that role. He said he’s worked on more than a dozen jury trials as DA and dozens of cases that were resolved with other dispositions.
Where do the candidates stand on charging ‘false report’ cases?
Branson’s office drew attention last year when prosecutors charged multiple women with allegedly filing false reports of sexual assault or domestic violence. Advocates for survivors were critical of the cases, concerned that they could have a chilling effect on others who might then be even more hesitant to come forward and report crimes. Candidates were asked during a forum how they would handle cases of false allegations made against innocent people.
Overstreet said false reporting is a felony, and if he was brought such a case, he would look at the amount of investigation put into it to see whether it was based on facts and evidence or on confirmatory bias. He said he would want prosecutors to be trained to ensure that no one was charged with a felony based on a hunch. He also said he wouldn’t want prosecutors in his office to have “tunnel vision,” focusing solely on getting as many convictions as they could, but rather that victims and survivors should lead the way in how cases are prosecuted.
Branson said he “unfortunately” had experience in that area. He said he hadn’t understood the potential harm that filing false report cases could have on someone trying to report a crime. He said the office has to make sure it has all the facts, then make a conscious decision about whether charging a case was in the best interest of everyone involved and the community. However, he said his office has had cases in which the alleged victim has confirmed that they provided inaccurate information to police, and he doesn’t think he should “turn a blind eye to those.”
Valdez said sexual assault and domestic violence cases are very sensitive and personal for the complaining witnesses, and to then turn around and charge those witnesses is very rare, nationally. She said the use of public resources to prosecute those cases has upset people, and it’s hurt the reputation of the DA’s office. She said training on that issue would be important. She also said she believes in due process for the accused, and she didn’t want her position confused with what she thought was the wrong decision in charging the specific Douglas County cases.
Why did Branson continue to employ Amy McGowan?
A former chief assistant district attorney in Branson’s office, Amy McGowan, has drawn criticism from criminal justice reform activists. In particular, a case she had prosecuted in Jackson County, Mo., was overturned last year, with the court citing errors she had made, such as withholding exculpatory evidence. The defendant, Ricky Kidd, was exonerated and released after 23 years in prison.
Branson took her off her felony caseload in 2013 after the Kansas Supreme Court took issue with comments she had made in a few closing arguments and sentencing hearings, but Branson eventually put her back on active cases.
In addition, earlier this month the Kansas Court of Appeals overturned the second-degree murder conviction and vacated the sentence of Danny Queen — a defendant who had testified about shooting the victim — because of a speedy trial error.
That was also a case McGowan handled, and Branson said that “Individual attorneys are responsible for calculating speedy trial when the case is set for trial to make sure speedy trial requirements are (met).” Branson said his office is petitioning the Supreme Court to review that ruling, but if the ruling stands, Queen can’t be retried for the crime.
Branson said that McGowan had a “stellar reputation” and a “wealth of experience” when she came to his office in January 2005, just after he was first sworn in. During her nearly 15 years in Douglas County, “she continued prosecuting high-level cases, difficult cases, and she did so, frankly, very well,” he said.
After Kidd’s case was overturned, Branson said, McGowan was taken off her cases. He said she opted to retire on Nov. 1, 2019, and he allowed her to do that. He also said that she was never disciplined in Missouri or Kansas, nothing is preventing her from practicing as an attorney and there had never been any issues similar to what occurred in the Kidd case while she was employed in Douglas County.
Has Overstreet taken any appointed cases?
Overstreet has pledged that, if elected, he will “decriminalize poverty” by making the default policy in his office to request own-recognizance bonds in most cases, for instance, and by eliminating or reducing to a minimum some fees for programming. However, he has not taken any appointed cases from the Board of Indigent Defense Services, or BIDS.
Overstreet said he went to work at a private law firm out of law school for several personal reasons. Because of the high volume of work he was tasked with, it wasn’t feasible for him to be added to any appointment lists, “which require at least a year commitment in most cases and require attorneys to take as many cases as are assigned to them,” he said.
Overstreet confirmed that the Swain Law Office withdrew from a high-profile case because the defendant could no longer pay. Overstreet said that was true of almost all private defense firms and that those decisions were not made by junior associates, which he was at the time.
“It is not realistic to think that heroic individual attorneys can pick up the slack for the failure of the County to provide meaningful indigent defense services,” he said via email. “We need to place the blame where it belongs — with the failure of the County and the system, and not on individual attorneys who are trying to make it in the for-profit system of private legal defense.”
What about Branson and Valdez?
Valdez said she has had no BIDS cases, but she worked as a legal services lawyer for about seven years. She said she did misdemeanor defense work for adults and juvenile offenders, and that she has represented domestic violence survivors in protection from abuse actions.
Branson said he would estimate “conservatively” that while in private practice, he probably took about 200 BIDS cases.
Is Valdez really a Democrat?
Valdez said she hoped her record showed where she stood. As the Journal-World has reported, Valdez was registered as a Republican from 2000 to 2008, was unaffiliated from 2008 to 2014 and had been a Republican from 2014 until she switched to Democrat in January of this year.
“I should have taken care to change my party designation,” she said via email. “But the DA office is a nonpartisan office and I hope my professional record speaks for itself.”
She has said she was a “Bob Dole Republican.” Asked to clarify that, she said her civics teacher growing up was a fan of Bob Dole, and she became one, too, at a very young age. She said she admired his military service, his public service and his work to get the Americans with Disabilities Act passed.
“My reference to Bob Dole in this election is to explain that these kinds of Republicans — the ones who reach across the aisle for the public good are no longer leading the party and that is why I left the party,” she said via email.
She said her values and ideals were much more aligned with the Democrats and that she had always voted for “the right candidate,” including Barack Obama and Hillary Clinton.
Would the candidates establish a conviction integrity unit?
One question that has come up in multiple candidate forums is whether candidates would want to establish a conviction integrity unit, or CIU. CIUs have “popped up” over the last couple of years, primarily in larger metropolitan areas, said Alice Craig, an attorney with the KU School of Law Paul E. Wilson Project for Innocence and Post-Conviction Remedies.
She said the goal of such units was to review cases that have been litigated to ensure that convictions were not wrongful. The review could be on the basis of evidence, such as DNA, or eyewitness identifications, for instance, Craig said.
CIUs function separately from the DA’s office, so it takes quite a bit of money and staff to make it happen. Craig said federal grants were available to fund them, but it’s necessary to have enough cases to support it, and she didn’t have enough information about Douglas County’s caseload to say whether it should have a CIU.
However, she also said it wasn’t necessary to establish a CIU to review post-conviction cases, and she noted that the KU innocence project has worked with many jurisdictions, including Douglas County, on investigations for wrongful conviction cases. She said it could be a duty assigned to one person in the office, and the office could put in place a procedure to allow those who believe someone was wrongly convicted to seek reviews of cases.
Both Overstreet and Valdez said they supported all routes to go about post-conviction review, including seeking a federal grant to launch a CIU, devoting staff members to the effort, establishing a procedure for people to request a review of cases and putting in place written policies about how such cases should be handled.
Valdez said she thought that it was especially important for Douglas County since one DA has been in place with no challengers for nearly 16 years. She said that it was necessary to put resources into a CIU to restore public confidence one way or another, and pursuing a grant would be one funding option she’d pursue.
Overstreet said he would want a CIU to review convictions but also to look closely at what went wrong from various angles. That would include looking at the law enforcement investigation and the actions of the prosecutor and defense attorney who worked on a case to make sure that the same issues don’t happen again.
Branson has said he would not pursue a federal grant to launch a CIU. Also, because all of the assistant district attorneys handle cases, if one staff member were devoted to reviewing cases, that could mean one of their cases would come back to them, but he would want someone who wasn’t associated with a case to be the one reviewing it.
Regarding policy, Branson said his office has been working on a draft webpage to explain how the appeals process works and to provide a way to submit new information in cases. He said once published, that would be his office’s internal policy as well. He also has said his office has been willing to do new evidence testing, for instance, if people believe they’ve been wrongly convicted.
The primary election is Tuesday.
Contact Mackenzie Clark
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More 2020 election coverage: Douglas County district attorney race
• April 28, 2020: District Attorney Charles Branson files for reelection in 2020
• April 16, 2020: Two Democrats file to run for Douglas County district attorney