County attorney hopefuls argue over statistics - East Valley Tribune: News

County attorney hopefuls argue over statistics

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Posted: Friday, October 17, 2008 8:02 pm | Updated: 11:36 pm, Fri Oct 7, 2011.

The candidates for Maricopa County attorney are using statistics as weapons of political destruction. An unprecedented rise in felony trials has flooded the courts during Andrew Thomas' four years as top prosecutor, all sides agree.

Former county attorney Romley blasts Thomas

Thomas expects Romley to endorse Democrat Nelson

Now, the campaign's central question is whether "not guilty" verdicts have surged as well.

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Tim Nelson, the Democratic nominee, has fired figures that he argues show the trial increase has overworked prosecutors, causing them to bring weak cases that they are losing in greater numbers.

Armed with his own numbers, Thomas counters that prosecutors are winning at the same rate as his predecessor, fellow Republican Richard Romley, despite trying more felony cases.

But neither of the candidates' contentions are accurate.

Trials have become less common than they were a decade ago. So, too, have acquittals.

Data on felony cases gathered by the Arizona Supreme Court, and reviewed by the Tribune, documents that trial rates have been nearly 50 percent lower during Thomas' tenure than they were for much of Romley's final two terms.

Overall conviction rates, alone, have remained virtually unchanged at 85 percent.

That figure hasn't shifted more than 3 percentage points, up or down, in any year.

Comparisons between Thomas and Romley took center stage in the campaign earlier this month after Romley crossed party lines to endorse Nelson.

The court's data undermines conventional wisdom that both campaigns have embraced: that Thomas' "plead to the lead" policies caused far more cases to go to trial.

Last fiscal year, which ended June 30, county prosecutors tried 942 felony cases before a jury or judge - 27 fewer than in 1998.

SURPRISED BY FINDINGS

Thomas, Nelson and Romley each said the findings are a surprise.

"Apparently the criminal defense lawyers who remember the golden days under Romley, when they didn't have to go to trial, have conveniently forgotten the earlier days when the trial rate was higher," Thomas said.

Romley dismissed the notion that his office ever shied from trials, and said the court's data show Thomas' policies are more talk than action.

"I learned a long time ago that sometimes public pronouncements are very different than what the hard core facts are," he said.

For his part, Nelson said he has struggled to find reliable numbers proving Thomas' policies have caused losing cases to pile up, wasting taxpayers' money.

"Anecdotally, I keep getting told, 'Well, there's been this huge jump in acquittal rates,'" Nelson said. "So I've been trying to prove that for a long time."

Even if Nelson had been able to find complete and accurate numbers, it's unlikely they would prove anything.

Statistics like trial rates, conviction rates and acquittal rates can say different things depending on who reads them, said David Brody, a Washington State University criminal justice professor.

"That's why you see so few contested elections with prosecutors because it's really hard to measure effectiveness," said Brody, whose research focuses on the relationship between politics and the courts.

A low trial rate might show that prosecutors are plea bargaining a high number of cases. That can be good because it saves taxpayers money by avoiding trials, Brody said. Or it can be bad because criminals are getting shorter prison sentences, or just probation, for serious crimes.

Nelson and Thomas both said they oppose deciding how to prosecute a case to influence statistics.

"The goal isn't to go to trial or to avoid trial. The goal is to protect the public and obtain justice for crime victims by sending serious criminals to prison for long periods of time," Thomas said.

Thomas requires defendants charged with serious crimes to plead guilty to the highest charge, or take their chances at trial.

Numerous defense attorneys have criticized Thomas' plea bargain policies, predicting a greater number of cases being lost after expensive trials.

Nelson said he would repeal that plea bargain policy. He argues it doesn't allow individual prosecutors the freedom to make decisions on what charges and sentences are appropriate for their cases.

"The idea should be that you're taking cases to trial where you feel confident that justice would result with a more serious sentence than anything the defendant might plead to," Nelson said.

'A BALANCING ACT'

Criminal prosecution is complex and cases cannot be resolved with simple formulas, Brody said.

"It's a balancing act and theoretically the public decides if they like the way a prosecutor's doing the balance," he said. "There's no good answer, unfortunately."

The state Supreme Court data go back to the fiscal 1998 year. It details the last seven of Romley's 16 years as top prosecutor and all four of Thomas'.

Acquittals are defined as felony cases in which a jury or judge finds the defendant "not guilty" on every charge.

Fewer than 18 percent of trials have ended in acquittal throughout Thomas' first term, the data shows. The total number of cases that were lost have increased slightly each year.

Prosecutors sometimes prevent such losses by avoiding cases entirely.

After Romley endorsed Nelson, Thomas' re-election campaign distributed book excerpts accusing the former county attorney of doing just that.

Gary Lowenthal, now a retired Arizona State University law professor, took a yearlong sabbatical in 1997 to work as a prosecutor under Romley. Then, in 2003, Lowenthal published a book about his experience; "Down and Dirty Justice," that criticized some of Romley's strict policies intended to ensure stiff sentences for criminals.

The professor also alleged Romley declined to file criminal charges in as many as half all cases police submitted. Those cases appeared more likely to end in acquittal - and lower the office's conviction rates.

In an interview this week, Lowenthal said he now views the same statistic differently. Rejecting potentially weak cases shows good judgment, not political manipulation.

"I wish for the good old days when Rick Romley was the county attorney," Lowenthal said.

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