Joshua Marquis: What's at Stake in the Looming DA Election
No one thinks much about the District Attorney's position...until the incumbent goes off the rails.
If you live in Multnomah County, you will soon be bombarded with ads for a political office that may have more effect on the quality of life in the county, if not the entire state, than any other single office.
That job is District Attorney for Multnomah County, and in the last four and a half years it has been held by one of the most unapologetically progressive politicians in Oregon.
How progressive is Multnomah County DA Mike Schmidt? On Dec. 7, he will be holding a panel discussion at the Oregon Museum of Science and Industry on the subject of ending mass incarceration. He will be joined by former San Francisco District Attorney Chesa Boudin, who was recalled by voters last year during the city’s well-publicized crime wave.
It may be hard to believe, but Multnomah County had a District Attorney for more than 30 years — Mike Schrunk — who was widely considered the premier DA in Oregon. But Schmidt, the "Mike" now in office, is the epitome of everything wrong with Oregon politics.
Now, some background on what a DA actually does…
The uniquely American marriage of justice and democracy makes the District Attorney’s position critical; yet most voters know next to nothing about the candidates and very little about the position.
An example of American exceptionalism, the popular election of DAs—also called Prosecuting Attorneys, State's Attorneys, County Attorneys, Commonwealth Attorneys, and County Prosecutors—does not exist outside the United States.
Until relatively recently the office of District Attorney was an elected, thus political, post that drew little attention. The conventional wisdom was that it was, in fact, a "gateway position" to anonymity. The closest any DA came to being elected president was Thomas Dewey in the 1940s, and one can count on one hand the number of former chief prosecutors who have become members of Congress.
The District Attorney position is intrinsically an unpopular job. If you do the job well, it’s possible you’ll eventually piss off everyone. Refusal to bring charges against unpopular defendants will enrage some, and filing straightforward charges like drunk driving and domestic violence against popular people can earn a quick path to political obscurity. It’s a dead-end politically. The pay is meager compared to the private sector.
Until the 1980s, Oregon lawyers who ran for the office rarely stayed with the job more than a couple of terms. Most were selected in smoke-filled rooms by other lawyers wanting someone who would provide the least path of resistance. There were glorious exceptions, men who started changing the rules and disrupting the good-old-boy society: Pat Horton in Eugene (Lane County) in the ‘70s and ‘80s; Dale Penn in Salem (Marion County) during the same period; Bob Hermann in Washington County at the turn of the millennium. The residents of Albany (Linn County) have enjoyed a long run of first-rate top prosecutors: the late Jack Frost found a kindred soul in his protégé, Jason Carlile, who, in turn recently handed over a superbly running office to Doug Marteeny.
In most states a single person serves as the elected DA for an entire county, “without fear or favor or promise of reward.” That’s the case in Oregon where a single person is elected to the position, whether for a populous county like Multnomah (with over 800,000 residents) or for a county with barely 2,000 residents (Wheeler, Gilliam, Sherman). In Alaska, Connecticut, and New Jersey, the top prosecutor is appointed; Delaware and Rhode Island are so small that the state’s Attorney General is also the top prosecutor. The divisions are intended to allow for the upholding of community standards.
Beginning around 2018, out-of-state interests began targeting local District Attorney offices. Part of the so-called "progressive social justice” movement, George Soros and his vast wealth through the Open Society Institute poured unprecedented amounts of money into campaigns for left-wing lawyers with very little in common with cops, with whom most prosecutors have a complex and rarely-understood love/hate relationship. Soros quickly figured out that these were political offices that punched far above their supposed weight, were largely ignored, and as a result very little money was ever invested in elections for the post.
Soros got his money’s worth and a crop of top law enforcement officers were elected who really wanted to release people rather than arrest them. But there’s a fundamental conflict in the mission that will push its way to the surface. Supporters of progressive DAs expect to see massive changes in police behavior, changes that make no sense when the point of a police force is to intercede and prevent violent crime, not take part in its birth.
One of the first progressive DA’s, Marilyn Mosby in Baltimore, could not reconcile her deeply-felt alliances with those accused of crimes and her job to represent the people of Baltimore County. She lost her re-election bid in 2022. Recently, she was convicted in federal court for false mortgage applications for property in Florida.
In San Francisco, Boudin, the lawyer/child of two radicals convicted of murdering cops during the 1970s "Days of Rage" terror campaign, proudly took that background into office as District Attorney. It’s like trying to jam electrons that will always repel each other into the same space: It is both politically and legally counterintuitive. In July of 2022 Boudin was recalled by 55 percent of voters after only two years in office.
In Oregon, most efforts to install Soros-style DAs failed spectacularly.
Long-time Washington County DA Bob Hermann retired in 2018 and his Chief Deputy, Kevin Barton, readied himself to take the mantle. Soros progressives saw their chance. They assumed that since Oregon legalized marijuana (and eventually all drugs) and passed many progressive laws, the state was ready for one of theirs to replace a traditional “law and order“ type.
In a race that was rarely contested in Oregon, the Soros machine spent more than $1 million for a medium-sized DA’s race in suburban Oregon, an unthinkable sum. Barton won the race with more than double the votes and did it again in 2022.
Across the county line in Multnomah, a very different sort of election played out in 2020. Mike Schrunk had been the DA there from 1981 through 2013. Schrunk was widely regarded among the law profession and the media as both a class act and a political genius in a politically volatile county. Only once did he face, and easily defeat an opponent, then-public defender Ed Jones.
Rod Underhill, a low-key Deputy DA who failed to show most of the qualities that had earned Schrunk such respect, assumed the office in 2013 and then made it clear he wasn't staying. It wasn’t surprising that the matchup in 2020, between patrician federal prosecutor Ethan Knight and former deputy DA turned politico Mike Schmidt, loaded with support from the usual Portland suspects, resulted in a lopsided victory for Schmidt. Underhill even left office early, to allow Schmidt an early start at dismantling many of the good things Mike Schrunk had spent decades building.
A district attorney’s chops are usually made by taking on, prosecuting, and winning major cases. Schmidt made his political bones doing everything except trying cases. He was appointed to serve as staff counsel to Oregon’s Judiciary Committee, a short path to becoming acquainted with Salem’s politicos, but not a path to respect or glory in prosecution.
Schmidt appeared much happier working his way up as a Salem bureaucrat than as a deputy DA in Portland. He turned the sleepy, if rarely innovative Oregon Criminal Justice Commission (OCJC) into a much larger powerhouse to control federal funding for state criminal justice. (Full disclosure: I served four years as an appointee of then- Gov. Ted Kulongoski, filling the “DA seat” on the 8-person OCJC board from 2005 through 2009).
Under Schmidt, the district attorney’s office in the City of Roses has devolved from what was widely considered the best run into arguably the worst. That didn’t happen overnight, and it can be measured.
It can be measured by the number of mid-level career prosecutors and staff who have abruptly left, suing their boss, ironically claiming that the work atmosphere had become toxic. Other metrics include the sheer number of high-end homicide cases that have been allowed to plead all the way down to Second Degree Manslaughter, with prison sentences of only 10 years, or often less.
Most of us who are or were trial lawyers bitterly remember the one case that we either overestimated or under-performed, having to face the deceased's loved ones and tell them that not a single juror bought our version. But Multnomah County has made these events regular events almost monthly, with an ensuing dive in office confidence, in both Schmidt, and themselves.
Prosecution is justice brought into the cheap government lighting of a courtroom. As I often told victims, we aspire for juries and judges to see the truth of our case without any of the glamour our system dresses it up with. Was this woman sexually violated by this man? Did he know what he was doing? That it may have been an ill-advised relationship doesn’t matter. Were the hard lines of criminal law crossed by this defendant?
The prosecutor’s job in the courtroom is to burn the facts, as they relate to the law, into every person in the room. You can’t care what the other lawyer thinks of you, or the judge, or the media.
But the really important audience is the jury (Oregon is one of very few states where a defendant alone can choose to go with a judge trial and waive a jury verdict).
It’s a lesson Mike Schmidt never learned. He has never stood before a jury on a murder case....or a vehicular manslaughter case...or a violent rape case.
In the May 2024 election, the people of Multnomah County have much at stake. The center isn’t holding, the dark beast moves towards Bethlehem. The failures of prettifying the open pain and anguish of drug addiction, mental illness, riots, and gunshots throughout Portland’s neighborhoods are plain to all.
It will be the most important vote on the ballot.
I would go to the December 7 event to see for myself how bad things are, but I can’t as I’m recovering from knee surgery. So I hope you will write up a report for those of us who can’t make it.
I hope the people that should read this do.