The Boulder District Attorney Race: Interviews

Published on: May 27th, 2018

 

 

Politics can be boring. I know. It’s impossible to follow all the races and be informed on all the positions. Some races seem more important. The governor’s race gets all the glamour: news pieces, tv spots, editorials, interviews galore. We’re almost all aware of the congresssional and state house candidates (at least in our little area), plastering our neighborhoods with leaflets, pamphlets, door hangers, and yard signs. But no race – no race – has more impact on the lived reality of citizens than the District Attorney. These are the people who have incredible power and latitude in prosecuting our laws. When we look at the state of the American prison system, out incarcerating notoriously oppressive nations like China and Russia, maybe we think we need to do better or wonder if Americans are really that much more prone to crime. Hint: they’re not.  The DA has direct bearing on our overcrowded and overfunded prisons. The DA has discretion on prosecuting crimes, whether seeking prison time for local activists or trying to hold the powerful accountable .More locally, when we look at our own patch of planet and realise that our state is set, for the first time its history, to pass the $1B budgetary mark on the backs of increased minor drug possession and incarceration of women, we have to pause and ask: what the hell are our state district attorney’s doing?

To answer that question, and a few others, we sent longtime contributor, Darren O’Connor, out to interview Michael Foote and Michael Dougherty, candidates for the office of the District Attorney in Boulder County. Responses have been edited for clarity and space.

 

 

Michael Dougherty:

I was born in Brooklyn, New York, proud grandson of four Irish immigrants who came over on the boat and settled there and raised their families there. My dad was a New York City public school teacher and went on to become a principal. My mom was a waitress and department store clerk. I went to community college and worked nights and weekends to put myself through school. Ultimately I went on to law school at Boston University. For a long time, I thought I’d become a public defender representing indigent people. But I had a professor who told me if I found the right DA’s office, that the mission would be to do justice. And that’s what I’ve been doing for the last 20 years as a prosecutor. I started at the Manhattan District Attorney’s office, worked my way up through the ranks becoming the deputy chief of the sex crimes unit, where I was supervising 45 attorneys working on sex-assault and human trafficking cases. That’s more attorneys, by the way, than we have in the Boulder DA’s Office. For the last three years there, I was in charge of the day to day operation for a staff of 1,300 people. So I know first hand what it means to be a leader in a large and busy office, and how important it is for leaders to have integrity and a vision for the office. My brother had moved out to Colorado–he is currently a physician assistant at the hospital. My parents sold their place in New York and got a place in Boulder. They’ve since passed, but my wife Antonia and I would come out and visit them and fell in love with Boulder. What prompted us to actually make the leap and leave our lives in New York was the opportunity to start up a wrongful conviction project here in Colorado. The Attorney General secured a federal grant to go back and look at convictions involving murder, manslaughter, or sexual assault and determine if anybody was sitting in a state prison who was in fact innocent.  So we moved out here for that, and seven months later I was put in charge of the criminal section of the Attorney General’s Office. I continued to oversee that project. That project actually led to the exoneration of Robert DeweyThen for the last five years I’ve been the 2nd in command for the DA’s office in Golden. I have two kids, twins who are ten years old. They’re amazing kids, thanks to their mom–their dad’s still finding his way–but I’m really fortunate, ever since we moved to Colorado we’ve lived in North Boulder, and we live about five minutes from where we are right now (Logan’s Coffee Shop at Quince and Broadway).

 

 

Mike Foote:

I first came out to Boulder County in 1999 looking at law schools. I grew up in Indiana, went to undergrad there, and worked in Indiana for four years, at Indiana University. I came out to Boulder, and like so many folks, completely fell in love with Boulder as soon as I got here. At the time it [the law school] was just the old Fleming building. I was looking around, and not really all that impressed with the building, and thought I wasn’t going to end up going to law school here but then I rented a bike at U-Bikes and rode it to the top of Flagstaff that day and decided this was a great place to go, and I wanted to spend my life here. I’ve been here since 1999, other than about a year and a half after I graduated and worked in the Durango DA’s Office–Boulder wasn’t hiring–then I came back and got a job in the Boulder office. I’ve been working at the Boulder office since 2004,  doing all different types of cases. I was specializing in complex economic crimes for several years, then I ran for office for House District 12 starting in 2012. During the legislative session I’m on leave from the office–from January until the end of May–and I just completed my sixth year as a state representative, and was back at the office for the other seven months out of the year. I prosecuted all types of cases, sexual assault trials, pretty much whatever was needed, including spending seven months working on a juvenile docket, for example. So that’s part of the experience I’ll bring to the District Attorney’s position. As a state legislator, it was a fantastic experience, it  was a great learning experience in so many ways. I was fortunate enough to represent east Boulder County and  ran a number of bills on criminal justice issues, on education, and this year I even got to run a big bill on healthcare. Certainly my focus was on criminal justice and energy, particularly oil and gas. I have two young girls, one is nine, one is six. The nine year old is Amelia, the six year old is Leanna. My wife Heidi and I have been married since 2005. We’ve lived in Lafayette since 2005, and we love it there, we love Boulder County. It’s a great place for us and for our family and we feel very fortunate to raise our family here.

 

 

 

 

 

 

YS:  What are the legal boundaries for a DA addressing issues of oil and gas drilling in Boulder County and what are your thoughts on the topic both personally and professionally?

 

Michael Dougherty:

I’ve prosecuted environmental crimes in my career. In Colorado, the way it is structured, under statute, the Attorney General has original jurisdiction over most of the environmental crimes. The Feds also have authority over environmental crimes. DA’s have very very little statutory authority, very little ability to prosecute environmental crimes. To me it’s important that the DA be a good working partner with the Attorney General and with the Federal Government so that we can ensure that Boulder is protected. But the DA actually has little authority, so, what I would equate it to, my wife and I would say that fracking is a crime against humanity and a crime against mother Earth. If they put a drill in our backyard, my wife would probably want to go out there and assault the drill operator. That would be the only law under Colorado law that I could prosecute, though it would probably be bad for the marriage if that happened. So I think fracking is terrible, but I really am committed, as I am with every issue, quite frankly, I’m really committed to being honest about my authority here. I’ve been really honest and upfront with people about the fact that personally, I’m against fracking; I’d like to see our community be able to ban it. I will vigorously prosecute environmental crimes, but I’m also not going to mislead the voters and tell them I have some magical power as the DA that does not exist under the law.

Mike Foote:

The oil and gas industry is out of control in Colorado. The state has failed in keeping them in check. A reporter from the Colorado Independent interview[ed] a former Anadarko PR guy who describes a culture of sweeping problems under the rug, of not informing the state, of safety problems, and just so many acts of negligence and recklessness. And this was supposed to be one of those companies that do it right. When you would talk to folks like the Governor or others, they would claim “well there are some companies that don’t do it right and there are some companies that do it right–Anadarko is one that does it right.” But it’s clear they weren’t doing it right. It led to tragedy. And the reason why they do what they do, which is to say, pretty much ignore rules and regulations, is they know that nobody’s watching. There were fourteen fires and explosions since Firestone, all within the state. A couple of those resulted in fatalities of workers. The state has been very permissive [s]o I think that local jurisdictions have to pick up the slack where the state has left off. The District Attorney, I think, can do some of that–it’s not going to fall completely on the District Attorney, everybody has to do their part.  Some environmental statutes give the District Attorney original jurisdiction, and [for some,] the reference has to come from  Colorado Department of Public Health or the state. But some don’t require that, where the DA or the police department could send an investigator, and investigate, and if there is evidence, it could be prosecuted. So what I propose is that we actually do take an active role looking into possible environmental crime violations and to prosecute those violations if there is evidence to support doing so. It’s the difference between being passive, and being more assertive. There’s nothing really unusual about working with agencies–getting cases from agencies. What’s a little bit different is, up to this point, the District Attorney’s Office has not done that. And the prior District Attorney seems to think that we can’t. But I have looked at the statutes and I think that we can. I think at the very least, we should be assertive and go out and do whatever we can in this area, and make sure that we’re protecting Boulder County.

 

 

 

YS:  What can you tell our readers about the Conviction Integrity Unit and its future if you are elected to the DA position?

Michael Dougherty:

So on March 1st, when I took office, I recognized the importance of letting my staff and people in the community know my vision for the office. One of the top priorities was setting up the conviction integrity unit. I strongly believe as DA, it’s my mission, my mandate, to do justice. I should have a process that’s open, thorough and effective, and [includes] going back and looking at actual claims of innocence. In collaboration with the Boulder Public Defender, the private Defense Bar, and also CU’s Innocence Project clinic, we’ve set up a process for people to submit a request for us to go back and look at cases and see if they were wrongfully convicted. I have a tremendous amount of faith in the integrity of the DA’s Office, and our staff. But we still have to recognize that mistakes happen I mean, when I was a young prosecutor–I know what you’re thinking, I’m still a young prosecutor–cases didn’t [include] cell phone data, security cameras, text messages as evidence. It goes back to Mr. Dewey’s case. He was exonerated after serving 17 years in state prison for a murder he did not commit. Our work led to him being exonerated, as well as the actual killer being identified, arrested, and successfully prosecuted. And then we went to the legislature and fought to get a law passed that, Mr. Dewey, and anyone in his shoes, receives $70,000 from the state, as well as health care, and tuition if he wants to go back to school.

Mike Foote:

Well, I think that looking into old convictions, and making sure the job was done right and there wasn’t a mistake should be the duty of everyone that works in the DA’s office If there’s evidence brought forth that something was done in error, then we should always be willing to take a look at those things. I don’t see the conviction integrity unit as being much different from what each DA should be doing now anyway. I don’t know if you need to call it a unit–I mean it’s basically just assigning somebody to do it. That’s like saying, you’re doing district court cases, so now you’re part of the district court unit. I mean, I guess it sounds fancy, but I just think that every person in the office should always be willing to look at prior convictions, be willing to rectify any mistakes, that’s just part of what it’s like being a DA. So that certainly wouldn’t change when I’m elected. I’d want to talk to the folks that are doing it, I’d want to talk to the defense bar and the university and see if that’s the right way to do it, or see if it should be a different way. But I think the concept is sound.

 

 

 

YS:  Under the laws of Colorado regarding restorative justice, can you describe the amount of discretion judges and prosecutors have when applying or asking for a sentence after conviction?

Michael Dougherty:

I’m a strong believer in restorative justice. We have a robust restorative justice unit in the Boulder DA’s Office. It’s been incredibly successful in helping people get back on the right track. I think that really is part of the mission of the office, to help people who come in to the criminal justice system get back on the right track. I look at for example, the rate of recidivism: in Colorado, 48% of people released from state prison are back within three years. No-one can point to that number and tell me that’s a success. But for restorative justice in my office, the rate of recidivism is as low as 10%, and the highest we’ve had is 17%. I think the Boulder DA’s Office continues to be a model for the state,and we should have restorative justice programs all around the state. One other thing I’d mention to you is–and you’re the first reporter to hear this, this is breaking news–we’re going to be a pilot site for the state to have a mental health diversion program. What’s really innovative about it, and why I’m so excited about it, is it’s going to be pre-file. So individuals who come into the jail, who have a significant mental health challenge and are arrested on a low-level offense, will be diverted out of the jail within 72 hours and I will not charge those individuals. If you have a person that is struggling with mental health issues in the jail, they start to decompensate. They miss their kids, their work, their rent, you name it. Sheriff Pelle and I have partnered on this, along with the Public Defender’s Office, and the chief judge, and I’m really excited about it.

Mike Foote:

I’m pretty familiar with restorative justice, because I’ve referred cases to restorative justice as a prosecutor and, also, have done a number of things at the legislature to expand restorative justice and have supported those efforts. I think it’s a very good program and it should be used more. And yes, the District Attorney and judges have quite a bit of discretion to decide whether or not restorative justice should be used. The issue is, if it’s a victim crime, and the victim doesn’t want to participate, then you can’t force them to, and I think that’s very appropriate.  There are limitations. Restorative  justice takes longer, it takes more resources than putting someone on probation. I happen to think it’s a lot better than just putting someone on probation in certain cases. But it does take more resources, and you have to have willing parties to do it. So for example, if your defendant doesn’t want to do it and is going to resist it every step of the way, then it’s probably not going to be worth it. But, if the defendant wants to do it, if it’s a victim crime and the victim wants to do it, or if there are members of the community that want to do it, then I think it can be a very effective way to help rectify what happened, and help heal the community, and help heal the victim and the defendant going forward. So DA’s have  a lot of discretion in order  to refer a case to restorative justice, it just has to be a case that would be worthwhile to do so.

 

 

 

 

YS:  What is your perspective on the rise in felony rates, with Colorado reportedly seeing a 50% increase in felonies over the past five years, and do you agree that we have gone too far in criminal justice reforms and that has contributed to the increase in felonies?

Michael Dougherty:

I’m passionate about criminal justice reform. If we do it right, we actually enhance public safety. So I disagree with anyone who says that we’ve done too much in the area of criminal justice reform and that’s caused crimes to go up. I think that’s a knee jerk reaction and I don’t share it. In Boulder, we’ve had an increase of 30% in felony case filings over the last two years. We have five homicide trials scheduled for this year. We’ve had a sharp spike in violent felonies committed, and our staff is stretched really thin right now. We have an outstanding office, and they’re working incredibly hard to keep up with the influx of cases. But I don’t think it’s due to criminal justice reform efforts at all. I think if I had to point to one cause, if you told me just one, I would say the heroin and opioid epidemic. That drug addiction can be so powerful a disease that it causes people to engage in property theft that they would otherwise not engage in. So, bike thefts, car thefts, break ins–those things. When I see those things on the rise, I usually connect them to what we know is happening nationwide and here in Boulder: an increase in addiction to opioids and heroin.

Mike Foote:

I don’t think anyone’s positive as to why it’s gone up so much, so I don’t think we can say definitively why it’s gone up. In Boulder County, the biggest increases have been drug cases and domestic violence cases. So what’s causing that is a topic for debate. I think Boulder County is not unique in the increase in drug cases, particularly with opiates. Domestic violence is troubling because we’ve focused on it so well for so long, and to see it jump up like it has is troubling. I think there’s some things we can do in that area that can probably help that. In drug cases, I think there’s a lot we can do to refer cases through diversion or get out of the court system so it reduces the caseload and the workload on the courts and on the DA’S office. But you need resources at some point–like with treatment providers for example. One of the things that I’ll do when I start is go to the Boulder County Commissioners and ask for more money for treatment, and I think that helps everybody in the system, because it helps the DA’s office, first of all because we’re not messing around with cases that we shouldn’t be messing around with. And it helps the courts, and it helps the person that comes in, because going through the court system if what they need is treatment is not a very effective way to solve the issue. Felony filings have been going up around the state. It’s a troubling trend,one that lots of people are looking at to try to determine why. I don’t think it’s because of criminal justice reforms. I think that’s a convenient scapegoat that just doesn’t hold that much water in my opinion.

 

 

 

YS:  The Colorado Criminal Justice Reform Coalition reported this year that, of those sentenced to prison in 2017 for drug possession, 84 percent were originally charged only with minor possession. They further found that the increase in drug felony filings appears to have a disproportionate impact on women offenders. How much discretion do you have in plea bargaining when someone is charged with felony drug possession and what are your goals in regard to reducing incarceration rates for women and minor drug possession?

Michael Dougherty:

I come at this from the perspective that I was a leader on Senate Bill 250 in 2012, which brought drug sentencing reform to Colorado. That was helpful, in that it allowed people who are convicted of a felony, for that conviction to be reduced to a misdemeanor if they comply with and complete treatment. But we still see too many people going to jail, and prison, for drug offenses. Jefferson County, where I worked for the last five years, we had the drug recovery court that was incredibly successful in helping people get out of that pipeline, and get back on their feet. So I want to bring that to Boulder, it’s on my list of goals. It’s something that I’ve already talked to the chief judge and the Public Defender about. I think, with drug offenses standing alone, we have an obligation to help people get treatment they need. So I want to improve the systems within the courthouse. But I also want to fight for more community resources. People shouldn’t have to wait until they hit the doors of the courthouse to get the treatment they need. And I think Boulder is a special place–we’ve done a lot since I moved here in 2009, to improve treatment opportunities for people, but I think we can still do more.

 

YS: FOLLOW UP: District Attorney V Activists: Boulder County Attorney Ben Pearlman directed police to issue a ticket to a man beaming an image of a skull and crossbones along with the words “Ban Fracking!” onto the courthouse building recently, though the City of Boulder decided to drop the charges. Contrast this to the interesting example out of Massachusetts. In 2014, two people used their lobster boat to block delivery of roughly 40,000 tons of coal to a power station. The District Attorney there, Sam Sutter, dropped all criminal charges, citing the threat of climate change, and made a deal with the two men to pay restitution. Will your office be a Ben Pearlman or a Sam Sutter?

MD: We’ll use our discretion to make sure we do justice in every case. There was a question before Earth Day about protesters going on open space. I think that reflects how I’m going to be as DA. I took office on March 1st, as District Attorney, and when I was asked about people trespassing on open space, I spoke with people about it, then I went to the Sheriff and law enforcement. Sheriff Pelle, law enforcement, and I agreed, they would not arrest or cite anyone who trespassed on open space, and my office would not prosecute. So then I let people who wanted to protest on open space on Earth Day know that information, so going in they knew what law enforcement was going to be doing, and what they could expect. I think that’s my role as DA, is to determine what justice is, and then to communicate that clearly to the community. So that’s the kind of discretion that I’ll utilize and allow people to express themselves freely, provided there’s no significant property damage, and no physical injury that results.

Let me put it this way, without being glib–I’m Michael Dougherty, so I’m going to use my discretion and make sure the right thing happens in cases. I think what the DA did in Massachusetts, which I’ve read a little bit about, I agree with what he did in that case.

Mike Foote:

That’s a statistic I’ve seen in several places from the CCJRC, and it really surprised me, because that has not been my experience in Boulder County. So, they must be getting their data from other counties, because I don’t think that’s the case here anecdotally. But DAs do have a lot of discretion. Part of what I propose, is that we divert them out of the system in the first place. If we have a drug felony case that comes in that’s simple possession, we shouldn’t be messing with that. We should be spending time on violent cases. Instead, divert it out of the system, get them treatment, so that someone else is dealing with it, but they’re dealing with the treatment aspect of it. I think that’s good all around. From a results oriented perspective, it’s better for the offender, but it’s also better from the perspective of an administrator, because a deputy DA should be spending their time on things that are more worthy of their time. I mean, it’s a non-violent drug offense, so if you have ten of those cases, you can either spend a half day on those cases, or you can spend a half day on your trial for a violent crime. There’s only so many hours in the day.

YS: FOLLOW UP: District Attorney V Activists: Boulder County Attorney Ben Pearlman directed police to issue a ticket to a man beaming an image of a skull and crossbones along with the words “Ban Fracking!” onto the courthouse building recently, though the City of Boulder decided to drop the charges. Contrast this to the interesting example out of Massachusetts. In 2014, two people used their lobster boat to block delivery of roughly 40,000 tons of coal to a power station. The District Attorney there, Sam Sutter, dropped all criminal charges, citing the threat of climate change, and made a deal with the two men to pay restitution. Will your office be a Ben Pearlman or a Sam Sutter?

MF: Yeah, I’m open to new approaches in this area, and when it comes to oil and gas again, if it turns out they are allowed to come in to Boulder County even more than they have, and there’s protest, then we’re going to be faced with this situation. And what I’ve said all along is I won’t prosecute people for asserting their First Amendment rights. That should be clear.

I’m open to all kinds of creative solutions and want to make sure that people’s voice is heard, and I think there’s a role that everyone in the community can play to make sure that oil and gas stays out of our community.

So I would say, I would be a lot more Sam Sutter than Ben Pearlman in that.

 

 

 

 

 

YS:  DAs across the country have been part of the war on drugs, a war that is part of what Michelle Alexander has dubbed “The New Jim Crow.” With the nation’s leaders seeming more willing to address addiction as an issue deserving compassion rather than, perhaps incarceration, what is the gap between such public sentiment and the rising number of felony drug  sentences?

Michael Dougherty:

I listen to Jeff Sessions talk about the war on drugs, and I feel like he’s taking us in a time machine back to 30 or 40 years ago, to a war that was fought and lost, and lost, and lost. I as DA will continue to make sure that we have a very progressive approach to drug related offenses and drug addiction.

 

YS follow up: Do you think the softening of the war on drugs has anything to do with the fact that the opioid epidemic is “overwhelmingly white?” Think back, for example, to the crack epidemic of the 80s, striking mostly African Americans and also coinciding with much harsher sentencing in response.

MD: I would hope not, but I think it’s a legitimate question, to be honest. I can tell you from my perspective that I look at the numbers. I look at the fact that we had 50,000 people die nationwide last year of opioid overdoses. The fact that two thirds of those people had obtained the drugs that they died from through some lawful prescription. I grew up as a prosecutor in New York City where drug dealing was done on street corners and dark alley ways. This is different. So to me, the motivation to now try to tackle the opioid, and now heroin epidemic, is purely related to public health and safety. And I think what you’ve asked is a legitimate question in terms of the amount of attention paid to it nationwide. I can only speak to what motivates me to do everything I can to stop it.

YS: With the legalization of marijuana and a perhaps softer touch on addiction to opioids, do you think those jailed before this change in ideology struck should be released from prison, and how would the Boulder DA’s office take action, or not, with regard to those already incarcerated for drug crimes?

MD: I’ve spoken out publicly on this. I believe that as a matter of fundamental fairness, that people that were convicted of crimes, years ago, that now, would otherwise be legal, should either be released, or should have their convictions vacated. I’ve shared that with the Defense Bar and will be rolling out something more official in the next two or three weeks, just explaining what the process is going to be. It could be through a motion to reconsider, filed with my office. We would be prepared to grant that provided it was only an offense that would otherwise be legal.

Mike Foote:

I don’t know other districts, but it just doesn’t match my experience in Boulder […] In filings, that doesn’t mean that there’s been more felonies that have led to prison. There’s been a lot of felony drug possession filings, but in Boulder, I think the vast majority result in a non-prison type of plea. So that just doesn’t match my experience.

YS Follow up: Do you think the softening of the war on drugs, such as it may be, has anything to do with the fact that the opioid epidemic is “overwhelmingly white?” Think back, for example, to the crack epidemic–

MF: I would hate to think so, but I understand, for example in The New Jim Crow, the author talks about that aspect, so I understand that thesis, that theory. I guess what I would say is that a lot of time has passed since then, and a lot of people realize that what was done as a result of the crack epidemic didn’t work. We have tons of people in jail, and the outcomes aren’t any better. We built lots of new jails, yet people coming out of the jails still had a 50% recidivism rate, and it just continued to climb and climb and climb. This is what we talked about at the state legislature so much—why are we incarcerating these people, and what really gets people to understand the problem is how much money is being spent. So it appeals to folks on both sides of the aisle. I think there’s the benefit of retrospect, looking back and seeing how a lot of the country tried to deal with the crack epidemic and the war on drugs then and realizing it just didn’t work. So are we going to repeat the same mistakes, or are we going to try to go a different direction? That’s where we are right now.

YS: With the legalization of marijuana and a perhaps softer touch on addiction to opioids, do you think those jailed before this change in ideology struck should be released from prison, and how would the Boulder DA’s office take action, or not, with regard to those already incarcerated for drug crimes?MF: The passage of Amendment 64 was six years ago, so I’d be really surprised if someone was still in prison on a simple drug charge six years later. Certainly now, a simple drug charge doesn’t even have that long of a possible sentence. But prior to 2013, when we imposed new drug sentencing schemes, something that I voted for, maybe the maxf for a drug charge was six years for a straight F4 (4th degree felony), so the time is come and gone for that kind of question now, I think. But I do think we should be open to a sentence renegotiation if something like that were presented to us.

 

 

 

 

YS:  Outgoing DA Garnett did an interview with the former editor of the Daily Camera, Dave Krieger, who said: “Supporters of the camping ban point out that taxpayers fund public spaces and if they’re going to be usable by families and children, you have to be able to move homeless people off of them.” DA Garnett responded, saying “Yes. Totally agree.” How would you have responded?

Michael Dougherty:

So I think we, as a community, have come a long way in how we treat and interact with the homeless population. And you’ve been a tremendous advocate for the homeless. I understand that the question presented points out that the public safety and further interaction with the people from the public, whether they’re homeless or not, there should be safe spaces for people to be. But I don’t think that people have to be moved off those spaces. So I disagree with the question. I would have said that we should increase the amount of community resources available, and we should do more to help people get back on their feet, as opposed to talking about moving them off of spaces. Especially when this question does not include any conduct by the homeless individual that requires them to be moved off. In other words, if this [question] included the guys urinating in the creek, or he’d just threatened someone, or something happened that would mandate them being moved, then I might have a different answer. We should be doing everything we can to increase the resources available to the homeless. I think the question leaves out the community responsibility to do so, and I know there are a lot of people doing good work in that area. But also, there should be more conduct than that question reflects, before people are getting moved out of the space.

Mike Foote:

First of all, I think that, when it comes to camping bans, that’s not a state law. It’s a city ordinance. And so, that’s going to be mostly a city question. And I have to admit, I’m kind of happy about that, because I don’t think we should be dealing with that. I don’t think we should be dealing with camping bans. I don’t think it’s something our folks should be spending a lot of time on. If the bigger question is what to do about the homeless, then that’s just a much bigger discussion, and one that I wish I had the answer to. If I had the answer to and it worked, I would try to patent it and go around and make a lot of money advising cities and counties and states about how to deal with it. It’s such a multi-faceted issue. To the extent we would be dealing with trespass, which is a misdemeanor under state law, then I would try to dispose of any case as quickly as possible. I just don’t think it’s anything we should be putting people in jail for. And I would tell police agencies that that’s how we would be handling those cases.

 

 

 

 

YS:  The FBI, at a time when social media is rife with videos of police abuse and killing of African Americans, has warned of the rise in “Black Identity Extremists” or B.I.Es. This appears to convey that challenging police disparities in behavior against people of color is somehow illegal. Do you think such a view is legitimate?

Michael Dougherty:

This is the first I’ve ever heard of B.I.E., to be honest. But to answer your question, I don’t think people should be labeled in a manner that makes it more difficult to express their views. And I think until they commit some criminal act that they should be free to express their views in any manner they believe appropriate. I would say, I’ve worked with outstanding men and women in law enforcement throughout my career. I’ve also had the duty of prosecuting police officers. For example, I prosecuted a police officer who smashed a Middle Eastern man in the face with a police radio, because the man was selling photos of the 911 attacks. I prosecuted as a special prosecutor here in Boulder, Detective Jack Gardner, who had assisted an internet predator in avoiding apprehension. And given the detectives relationship with Stan Garnett and the Office, Stan asked me to take that case as a special prosecutor. And I prosecuted the internet predator, who pled guilty. The point being, police officers should be held responsible to the same laws that we all are, and that’s where integrity comes in.

Mike Foote:

Not really. I mean, we have people exercising their First amendment rights, and their desire to get the message out that they want to convey. These particular people want to challenge police behavior, and they have every right to do that. So, I don’t see it as legitimate.

 

 

 

 

YS:  Diversity within the profession of lawyer is particularly low (see here). The ABA, for example, lists 85% of practicing attorneys in 2017 as white, 65% as male. Does the Boulder DA’s office reflect such numbers, and what steps will you be taking to help make the legal field more accessible and attractive to marginalized groups?

Michael Dougherty:

I’ve always believed that no-one should come to the courthouse and see that everyone in the courtroom is one race, and it’s not theirs. Because they leave with the perception, if not the reality, that the system is not as fair as it should be. In Jefferson County over the last five years, what I started doing was sending letters to the affinity groups and minority groups at the law schools and the bar association requesting they let us come in and talk. So DU, for example, had me meet with students every year. We pitched it [on the second try] as, “do you have concerns about prosecutors? Come talk about all these things with us.” We saw an immediate increase in the number of applications there, just because those discussions were so open. I think people realized the mission of district attorney is to do justice and to do the right thing. The other thing I’d mention, implicit bias is an issue for us in the legal system. So, for example, two years ago, I was training 70 prosecutors in Jefferson County. And I asked them, how many of you think bias exists in the criminal justice system, by show of hands? Every hand in the room went up. Then I asked, how many of you have ever acted with bias in how you’ve handled a case? And not one hand went up. I think that really signifies the challenge we have and the importance of identifying implicit bias. A great thing about that discussion with my staff at JeffCo was, as a result, we brought a keynote speaker in for the statewide conference to speak on implicit bias.

 

YS Follow up: Becoming aware is one thing, getting exposed to speakers and taking those [implicit bias] tests are all important, but it’s so much self work, self critical work that, you know, ultimately I think it has to come from people’s motivation to do better once they realize they’re not where they thought they were.MD: Right. And I think, part of it is self work and self awareness, but also, you know,  prosecutors in my office took the job because they believe in doing the right thing. So if they see data, that seems to indicate that there’s some bias in the system, at one point or another–either the filing of charges, what charges are being filed, plea offers, sentencing, restorative justice programs being offered–our staff will scrutinize those numbers, because they want to do the right thing. So I think the data also helps us in that effort.

Mike Foote:

I think the practicing attorneys in the Boulder DAs office is pretty close to 50/50 male/female. It may be off [by] one or two [people]. And it should be 50/50, I mean, that’s the makeup of the population. So I think we’re doing fine there. As far as ethnic diversity, that’s more challenging. I know there’s been a number of attorneys that have come through, some have been minorities, some have not. And many of those have left, they go on to different things. There’s two aspects to it: one is trying to show the minority attorneys that the Boulder DA’s office is a great place to work and that they want to work here, then also to retain them once they are hired. Those are two different discussions, but I would be aggressive in both. I think it’s very important for us to have a diverse staff, and that includes diverse attorneys. We have to go out and aggressively recruit, just like law firms do. And also, make sure that we have better retention once they’re hired.

 

 

 

 

YS:  Are there any areas of issue or concern that you’re interested in tackling or addressing that we haven’t talked about?

Michael Dougherty:

I will say, being sworn in on March 1st is by far the greatest honor of my twenty years as a prosecutor. To be the district attorney in the community in which my family and I have lived ever since moving to Colorado is just a tremendous honor. It’s especially exciting because the two things I’m passionate about are public safety and criminal justice reform. I think in Boulder, especially now, it’s the absolute right time for me to bring those priorities as district attorney to this office. It is a terrific office. My transition has been incredibly positive and smooth, which was really important to me. For the immigrant community, for all the victims in the cases we’re handling, and for the staff themselves, I wanted to really make sure the transition was a positive one. Staff has been more enthusiastic and positive than I ever could have hoped for, so I feel really fortunate for that. I think people in Boulder want to see a progressive, innovative leader at the DA’s Office. Yes, people want their kids to be safe and, yes, we should be concerned about felony case filings and violent crimes going up. But we should [also] be fairly aggressive in coming up with programs that help those struggling with mental health issues. That help people with drug addiction, and enhance public safety through criminal justice reform. I never view the two as mutually exclusive. I look at them as very much connected, if you do it the right way. So being district attorney, and I hope to be DA for many years to come—that’s my commitment if the voters will allow me to get there—I’m excited about the leadership and trial experience, the integrity and the vision that I bring to the office.

Mike Foote:

I think that the Boulder District Attorney should be a community leader, and be responsive to the community. And that’s how we will have a very effective office. Being responsive to the community, for example, is making sure that the immigrant community is protected. And that’s something that the prior District Attorney went out of his way to convey, that you can come forward, we’re not ICE. I think that was a good read of the community’s concern. And that’s something that I would continue, and also make better, because it’s responsive to our community. Being responsive to the community doesn’t mean that, if the community doesn’t think you should prosecute a case, or does think you should prosecute a case, but the evidence isn’t there, that you do that. As a DA, you have ethical standards, and you have your conscience, and your duty is to do justice. The community wants to remain safe, first and foremost. So, of course, violent crimes, sexual assaults, gun crimes, those will always be priorities, crimes against the elderly will be a priority, any kind of vulnerable group, [including] immigrant protection and environmental crimes, those will all be a priority, because that matches the community’s priorities. On the other hand, things that won’t be a priority will include things you were asking about, like drug cases, where we’re going to try to divert those cases. It’s an interesting balance with the DA position. You have to be responsive to the community, but also be, in some ways, a little bit shielded from that too. You want to be able to use independent judgement. So that’s the kind of philosophy I’ll bring to the DA’s office when I’m District Attorney, is that kind of community responsiveness.

 

Boulder County’s primary election is on June 26th. For information on voting, candidate lists, and more, see the Boulder County Primary Information webpage here.

While Yellow Scene did not endorse any candidates in the primaries for the Governor’s race, we are agreeing with Darren O’Connor’s endorsement of Michael Dougherty. With a nationwide need to reform our Justice System, Mr Dougherty’s focus on alternative sentencing, reducing charges, mental health programs, fair sentencing, Restorative Justice, and Community Policing we feel he brings a refreshing and much needed approach to our criminal system.

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