A Pivotal Race for Prosecuting Attorney
Three very different candidates promise to transform the criminal justice system.
From the July, 2020 issue
Even with five hotly contested Ann Arbor city council races, easily the August 4 Democratic primary's most consequential race is for county prosecutor. Councilmembers generally come and go, but whoever wins the contest for prosecutor will likely hold the job as long as she or he wants it.
Though their resumes and plans differ, all three say they want to transform the county's current criminal justice system. They aren't running against one another as much as they are against retiring prosecutor Brian Mackie, who has been in office since 1992. They see Mackie as the personification of what's wrong with the system now.
"Our criminal justice system nationally needs reform," says Eli Savit, the city of Detroit's senior legal counsel and a U-M law lecturer. "I saw a lot of this playing out right here in Washtenaw County."
Arianne Slay says Mackie's prosecutors aren't "really focused on rehabilitation." The Ann Arbor senior assistant city attorney spent nine years in the county prosecutor's office herself--but says that, unlike her former boss, "I believe that restorative justice works."
So does Hugo Mack, currently an Ypsilanti defense attorney and former Washtenaw County public defender. He believes he is "by far the best qualified for the position pound for pound, as they would say in the boxing game, to get restorative justice to the people of Washtenaw County."
Restorative justice seeks to replace punishment with programs that reconcile offenders with their victims and community. With the integrity of the criminal justice system being questioned as never before, it's not surprising that all three candidates endorse it.
At seventy-one, Mackie's on the wrong side of that movement--but he's not going quietly (see box).
Along with wanting to transform the justice system, all three candidates are graduates of Pioneer High School. That's where the resemblances end.
Hugo Mack, sixty-five, is the only candidate to have run for public office before--almost. "I was in the process of running for 15th District Court [judge in 1992] when the
situation came up."
The "situation" was Mack's arrest and conviction for rape. Though he served ten years in prison, he continues to refer to the episode as "the false allegation."
Asked in a follow-up email if the conviction was ever reversed, he responds that "vindication/reversal do not always come in traditional ways.
"In 2010, Michigan Supreme Court did something never done before in the State's history, upon review they granted my application for re-admission to the bar, they were fully aware of 1993 and my challenged but never conquered integrity."
Eli Savit, thirty-seven, announced his candidacy more than a year ago, in May 2019. "It's my first time running, and I needed to get out there in the community," he explains. "I thought I was challenging a twenty-eight-year incumbent." Instead, Mackie announced his retirement that June.
Savit says he would fundamentally change the prosecutor's office by not "getting the justice system involved in the first place. The only cases that I think should end up with a jail sentence [are when] somebody's actions show that they are a threat to the health and well-being of the community.
"We need much more focus on rehabilitation and treatment over incarceration. We've got diversion and deflection programs, [but] those have been used far too sparingly by the current prosecutor's office. The prosecutor has been an impediment to the establishment of what we call problem-solving courts."
Savit is the only candidate without experience as a prosecutor or defense attorney. But the former clerk to Supreme Court justices Ruth Bader Ginsburg and Sandra Day O'Connor points to a wide range of other courtroom experience, including public interest and civil rights cases. "If we're serious about promoting equity--and holding corporations accountable when they break the law--that's experience we should want in our county prosecutor."
One reason Savit says "people have been pushing for more prosecutorial reform" in Washtenaw County is that "there's been a lot of dissatisfaction [with] the way that the Aura Rosser shooting was handled." The mentally ill Rosser was shot and killed by an Ann Arbor officer in November 2014 as she advanced on him with a knife. Both Mackie's office and the state police determined the shooting was justified, but protests against the decision continue.
"The way the Aura Rosser shooting was handled was unacceptable," Savit emails. "The Washtenaw Prosecutor should have never kept that case. A special prosecutor--one who doesn't work day-in and day-out with the police department--should have been appointed."
Arianne Slay, forty, also hasn't run before. She says she announced last spring because "Eli was out, and Hugo was kind of talking about it."
She doesn't criticize her opponents directly. All she will say about Mack is that "he qualified, so he's on the ballot." She agrees that Savit "has experience. But what I bring is relevant experience with prosecution."
In any other year, Slay's time as an assistant prosecutor would be her greatest asset. In the current climate, it may be her greatest liability. She stresses that she wasn't always happy with the way Mackie ran things when she worked there.
"Some days were struggles. We didn't have a lot of autonomy--[there were] a lot of blanket policies [which] don't allow for individual programs for rehabilitation," she says. "And that was very hard for me."
Slay says in her 2017 job interview with city attorney Stephen Postema, "my biggest question to him was, 'how much autonomy will I have to try reform?' And he said, 'you've got it.'"
Slay says that autonomy was "game changing because it allowed us to do programs that the city and county has not seen--diversion and deflection programs" to keep as many offenders as possible out of court.
Asked for an example of people who deserve diversion, Slay says, "We're locking somebody up [for stealing] a Slurpee from the 7-Eleven. Is that really helping?"
Told that her former boss says that doesn't happen (see box), Slay concedes folks are "maybe not initially" jailed for minor thefts. "But they'll have a probation violation where they miss two [AA] meetings or they're behind on their community service. And then they end up locked up."
Judges, not prosecutors, set probation terms and punish violations. But in a follow-up email, Slay argues that prosecutors "must take a more active role in the sentencing hearing and recommendations ... to promote terms that address the root causes of justice involvement." In her current docket, she writes, "many if not most of my cases are part of a diversion or deflection program"--for example, by referring offenders to mental health and substance abuse services rather than prosecuting them.
Mack has two campaign managers, nurse Corey Warren and entrepreneur Gigi Jones. He says 150 volunteers are "doing a lot of texting and video chatting [and] phone networking."
Mack's website has testimonials from community members but no elected officials. "This campaign is not based on a big-name endorsement, alright?" he says.
Nor is it financed by big money. His December 2019 disclosure showed total donations of $625, with the biggest contribution, $200, from one of his campaign managers. "This campaign is about message," he says. "It's not about money"--though he still hopes to raise a "minimum of $75,000."
Savit's campaign manager is recent U-M grad Charlie Widmaier, and he says they've got 200 volunteers and seventy interns working the campaign. Before the pandemic shut down in-person campaigning, Savit says, "we had upwards of fifty house parties in people's living rooms and gone to probably hundreds of community events." Since then, he figures they've made more than 20,000 phone calls.
Savit's endorsers include state senator Jeff Irwin and county water commissioner Evan Pratt. In late May, his campaign was "very close to our fundraising goals of $175,000." He's got about a thousand individual contributors, including county clerk/register of deeds Larry Kestenbaum, city council candidates Lisa Disch and Travis Radina, and his boss, Detroit mayor Mike Duggan--though Savit's own $12,060 contribution was by far the largest.
Slay's campaign manager is one-time board of education candidate Jeremy Glick, and she says they have "hundreds" of volunteers. They'd "planned on door knocking" but now "we're converting into phone calling."
She's endorsed by sheriff Jerry Clayton and former mayor John Hieftje. By late May, she says, her campaign had raised around $85,000 to $90,000, and "I'm hoping to bring in another forty to fifty." Slay's contributors include police chief Mike Cox; her current boss, Stephen Postema; and her former boss, Mackie--who gave $3,450.
MACKIE FOR THE DEFENSE
The prosecutor responds to his critics.
Brian Mackie says he's retiring at seventy-one because he's "very aware of mortality and the fact that I'm on borrowed time. My father was fifty-one [when he died and] his younger brother died even younger than that."
First elected in 1992, after a few years as a public defender in Wayne County and thirteen as an assistant to predecessor Bill Delhey, Mackie came up in the criminal justice system when the new causes were domestic violence and victims' rights. He embraced both.
When the Observer profiled Mackie in 2001, the chief complaint from defense attorneys was that his office charged domestic violence cases too aggressively. And Mackie points out that "Michigan was the first state that put victims' rights into the state constitution.
"That was back in the late eighties, a very, very different time," he says. "We should be proud of putting victims first, but now we only care about offenders."
Savit's "claim that I am an impediment to treatment courts is demonstrably false," he says. "We actively participate in all the specialty courts. Tomorrow, for example, one of my assistants and I will be in a Zoom meeting with our team preparing for an adult drug court."
Asked about Slay's suggestion that his office seeks jail terms for folks who steal Slurpees, Mackie emails, "I would like to see the case. Rarely do we lock men up who assault their partners. Even more rare is having a judge sentence someone to jail for a property crime.
"Despite the popular argument that prisons are filled with shoplifters, dope smokers and car thieves, Michigan judges lock up people we should be afraid of," the veteran prosecutor continues.
When people talk about high rates of incarceration, he writes, what they "fail to talk about is that Michigan is the second most violent state in the Midwest [with] a violent crime rate more than fifty percent higher than the state of Ohio ... 74% of Michigan's prison inmates are sentenced for a violent crime (a figure which the national ACLU reports). Nationally, the figure is closer to 53% of prison sentences being for violent crimes."
Despite Slay's criticisms, he says he's supporting her because she "is the only candidate who knows how to do the job. She was a good, very capable assistant."
Aura Rosser's 2014 shooting by an Ann Arbor cop has gained new resonance during the ongoing protests against unjustified police killings. Asked about Savit's call for a special prosecutor, Mackie emails, "Mr. Savit should settle on a position: He once called for the officer in Ms. Rosser's death to be charged. He later said that he did not have enough information. All the information, absent autopsy photos and scene photos of Ms. Rosser's body, are on the county website ... Mr. Savit's statements illustrate that experience prosecuting or defending criminal cases is essential to do this work properly.
"No serious person thinks there is evidence to prove that the killing of that poor woman was not justified," Mackie adds. "There is demonstrable proof of that fact: Unlike other killing of civilians around the country, neither Mr. Savat [sic], or anyone else, called for an investigation by the Department of Justice. [That] is because they knew what the result of a federal investigation would have to be. Charging an innocent person for political advantage would have consequences.
"Ms. Rosser was exploited in life and she is being exploited in death."
This article has been edited since it was published in the July 2020 Ann Arbor Observer. The identification of Eli Savit's campaign manager has been corrected.
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