The Wrong Prosecutors Are Being Recalled

The Wrong Prosecutors Are Being Recalled

Lara Bazelon — Read time: 11 minutes

March 27, 2022.

An Illinois state representative just introduced a bill to authorize a recall against State’s Attorney Kim Foxx for creating “a crisis of confidence in the Cook County judicial system.” In June, San Francisco residents will decide whether to oust District Attorney Chesa Boudin, elected in November 2019. And in Los Angeles, an effort to recall DA George Gascón, who took office less than 18 months ago, has support from the Association of Deputy District Attorneys for Los Angeles County, a group representing local prosecutors. (Initial recall attempts against Gascón and Boudin, both launched in 2021, failed to gather enough signatures to qualify for the ballot.)

While it is true that any California elected official can be recalled for any reason, the provision authorizing this remedy in the state constitution was designed as a bulwark against corruption and malfeasance. Should the Illinois bill become law, it would do the same in Foxx’s case. What have these prosecutors done to warrant a recall?

Tim Butler, author of the Illinois bill, said Foxx gave “preferential treatment” to defendants like Jussie Smollett, who faked a hate crime more than three years ago. But Foxx said she used her discretion not to pursue charges against Smollett to focus on prosecuting serious violent crime—a routine decision in an extraordinary case. Responding to the special prosecutor’s report that she abused her discretion and misled the public about her decision-making, Foxx denied wrongdoing, saying that “differences of opinion as to how a case was handled do not signify an abuse of discretion.” Butler’s focus on Smollett is particularly strange because Smollett is being punished for his crime: After Foxx recused herself, he was tried by a special prosecutor, convicted on five counts of felony disorderly conduct, and sentenced to serve 150 days in jail and 30 months’ probation, and must pay nearly $150,000 in fines and restitution. (A judge just ordered Smollett’s release pending his appeal.)

Butler also said that Foxx’s refusal to file charges in a recent murder case exemplified her mistreatment of crime victims. But in that case—a 2021 exchange of gunfire in Chicago that left one person dead and two injured—Foxx’s office said it lacked sufficient evidence to prove the case beyond a reasonable doubt and added that the police agreed with her decision. In the Gascón recall, proponents simply point to his policies such as refusing to seek the death penalty, demand cash bail, or charge juveniles as adults—the very positions he told voters he would take. (Gascón has since modified some of his positions.)

A statement from one of the campaigns to recall Boudin is similarly centered on an individual case, Troy McAlister’s. On Dec. 31, 2020, McAlister was on parole when he stole a car at gunpoint in another city and then drove to San Francisco, where he struck and killed two women. The statement blames Boudin for referring his previous arrests to the parole division instead of filing new charges. Since then, Boudin has been blamed for many tragedies—and for public health problems that the criminal legal system is ill-equipped to handle—by those who want to recall him. Safer SF Without Boudin claims that car break-ins and burglaries are at a “crisis level in San Francisco.” But it’s the police—not prosecutors—who make arrests, and the performance of the San Francisco Police Department (which has a nearly $700 million budget) is dismal. Arrests have declined by an average of 60 percent per reported offense from 2010 to 2021, according to a recent report from the Center on Juvenile and Criminal Justice, a nonpartisan nonprofit organization. The SFPD’s rate of reported offenses solved by an arrest—8.8 percent—is extremely low compared with other major city departments’, and the SFPD arrests Black residents at nearly 10 times the rate it arrests people of other races. (Editor’s note: In 2020, Chesa Boudin launched the San Francisco District Attorney’s Innocence Commission, which is chaired by the author.)

Whatever one thinks about the policies of progressive prosecutors like Boudin, Gascón, and Foxx, the recall movements are not about misconduct in office but rather about outrage over their policies, which the voters elected them to carry out. The usual remedy for disapproval of an elected official’s performance is to vote for another candidate at the next election. Recalls—which circumvent that process—are an extreme measure that should be reserved for extreme cases.

But “extreme case” prosecutors are not being recalled. In fact, quite the opposite: Two of the most infamous in recent memory may be reelected. Consider Todd Spitzer, the DA in Orange County, a wealthy, populous jurisdiction in Southern California, seeking to be reelected in June. For years, Spitzer remained close with senior prosecutor Gary LoGalbo, despite LoGalbo’s alleged serial sexual harassment of the women in the office. “This one is for the spank bank,” he allegedly told one colleague as he snapped a picture of her bottom. “I’ll use it later.” A county investigation corroborated many of the claims, and there are at least four lawsuits against the Orange County DA alleging sexual harassment by LoGalbo, known in the office as “Scary Gary.” (LoGalbo, who served as the best man at Spitzer’s wedding, resigned in December 2021.)

In February, a viral video surfaced showing Spitzer saying the N-word multiple times during a speech at the Iranian American Bar Association. Spitzer was repeating an epithet used by a defendant, but in the speech, he said “effing” to avoid using “fucking” while repeating the racial slur in full. The same month, former prosecutor Ebrahim Baytieh, whom Spitzer fired for his own misconduct, accused Spitzer of making racially inappropriate comments at a meeting about whether to seek the death penalty against a Black defendant. The case involved a double murder where the defendant’s alleged motive was jealousy over a white ex-girlfriend. Spitzer inquired about the race of the defendant’s other previous girlfriends, and said that Black men date white women to get “themselves out of their bad circumstances and bad situations,” according Baytieh, who contends that Spitzer violated state law by improperly taking the race of the victim into account. (Spitzer denies violating the law but admits he said that Black men seek out white women to elevate their “stature in the community.”)

Then there is Amy Weirich, the district attorney general in Shelby County (Memphis) who is seeking a second full term in November and has been credibly accused of committing misconduct for nearly 20 years. In 2005, the Tennessee Supreme Court described Weirich’s arguments as “improper” and “unseemly” when she repeatedly referred to two defendants on trial as “greed and evil.” In a separate 2017 decision throwing out the death sentence she secured against one of them, a federal appellate court characterized Weirich’s additional misconduct—elicitation of false testimony and suppression of evidence—as unfathomable coming from “any competent prosecutor.” The same year, the Tennessee Board of Professional Responsibility reprimanded Weirich for making improper closing remarks in a different murder case. The conviction was reversed on appeal, and the defendant later entered a plea to voluntary manslaughter while proclaiming her innocence. Weirich also enables misconduct by her deputies. In 2014, she defended one of her senior prosecutors whose “blatantly false, inappropriate and ethically questionable behavior” in another capital case led to another overturned conviction and his own discipline by the Tennessee Supreme Court.

Earlier this year, Weirich made headlines for her decision to prosecute Pamela Moses on a felony voter fraud charge, alleging that she filled out a registration form knowing that her criminal record barred her from doing so. Moses, who said that she relied upon her probation officer’s assurance that her actions were legal, was convicted and received a six-year prison sentence. A judge ordered a new trial after it was revealed that the state failed to turn over information pointing to the probation officer’s incompetence. Following a public outcry—Moses is Black and received a punishment far in excess of that imposed upon white people facing similar charges—Weirich shot back that Moses “set this unfortunate result in motion” by exercising her right to a jury trial rather than pleading guilty to a lesser offense. Moses is now out on bond, and her attorneys are pushing for Weirich to drop the charges against her.

I have seen the impact of true prosecutorial misconduct firsthand. Over the course of my 20-year legal career, I have represented innocent people who were locked up for decades for crimes they did not commit because of unethical and unlawful actions by the state. I serve pro bono as the chair of the San Francisco District Attorney’s Innocence Commission*, which investigates wrongful conviction cases. The cost of misconduct is measured in lives lost within the criminal justice system. The fact that prosecutors who misuse their role, sending innocent people to prison for years, face few consequences should give us all pause.

The U.S. Supreme Court has held that prosecutors have absolute immunity from civil liability for any actions they take during trial and have left it to the state bar to impose discipline. But that rarely happens. Weirich’s disciplinary case was unusual, and despite her documented record of egregious wrongdoing, the private reprimand she got was a slap on the wrist. Prosecutors who committed misconduct in criminal cases that led to exonerations were disciplined only 4 percent of the time, according to a 2020 report by the National Registry of Exonerations, which has documented more than 3,000 wrongful convictions dating back to 1989.

That is consistent with my experience. Since 2018, I have filed eight bar complaints against prosecutors in California, Minnesota, and Georgia with documented histories of misconduct in an effort to hold them accountable. Because I was acting as a disinterested law professor rather than a disgruntled litigant, I hoped that the state bar would take these complaints seriously, especially considering the wealth of documentation I provided in each case. But, as I noted last year, not one has resulted in so much as a public reprimand. And California is far from alone in this regard. In 2020, a Louisiana Supreme Court justice noted that it had been 15 years since the court upheld discipline for a Brady violation and that “no prosecutor in Louisiana has been disciplined for failure to disclose favorable information since, despite numerous published opinions finding Brady violations and high-profile exoneration cases.” This lack of discipline occurred despite Louisiana being a locus of prosecutorial misconduct, from wrongful convictions in Shreveport to fake subpoenas in New Orleans.

The progressive prosecutor movement that has taken root in the past few years was a reaction against such misconduct. It was also driven by a reaction against the punitive status quo: In Philadelphia, DA Lynne Abraham obtained more than 100 death sentences during her tenure from 1991 to 2010, and at one point one of her prosecutors was responsible for nearly 20 percent of all death sentences in Pennsylvania. Abraham was followed by Seth Williams, whose tenure ended when he was indicted in federal court on bribery and extortion charges. This is the pre–Larry Krasner history of Philadelphia, and yet it’s Krasner who faces a recall of sorts, too: Former Pennsylvania U.S. Attorney William McSwain recently said he will lead an effort to pass a state constitutional amendment to have the Philadelphia DA appointed by the governor.

The recalls against progressive DAs, whether they intend to or not, threaten to return prosecutor offices that are trying to turn away from these practices back to the era of hyperpunitiveness—and impunity.