How to Create a ‘Model Prosecutor’

Brian Middleton, a Democrat, is running unopposed for his second term as a DA in Fort Bend County, Texas. Photo courtesy Brian Middleton

In this painfully polarized political season, Brian Middleton seems an anomaly.

The 49-year-old lawyer became District Attorney in Fort Bend County in southeastern Texas four years ago—the first African-American prosecutor elected in a county that held white-only primaries until 1956.

He ran on a platform that included a pledge to divert people charged with minor nonviolent offenses from jail—a pledge similar to those made by so-called “progressive” DAs who have been demonized by the Right in big cities around the county.

Despite vying for a post that had been occupied by a Republican for 26 years, Middleton, a Democrat, secured a 19,000-vote victory.

But that’s not what makes him stand out this year, writes Matt Keyser of the  National Partnership for Pretrial Justice.

In theory, Middleton is especially vulnerable as he runs for reelection this month in one of the country’s most conservative regions—at a time when so-called progressive prosecutors have again become high-profile targets of the tough-on-crime message spread by Republicans.

But he’s running against no Republican opposition—making him a shoo-in for another four-year term.

What’s wrong with this picture?

Perhaps it’s our definition of anomaly.

While pundits on a national level are universally writing off any political figure whom they consider “soft on crime,” local and statewide opinion provides a more nuanced perspective.

In September, Middleton was awarded Texas Prosecutor of the Year from the State Bar of Texas and the Texas District and County Attorneys Association. Howard Henderson, director of the Center of Justice Research at Texas Southern University,  describes Middleton’s operation as a “model prosecutor’s office.”

Comments throughout his tenure emphasize Middleton’s  record of consulting with leaders on both sides of the party divide.

Bipartisan support evidently can insulate even the most sensitive local electoral position from the poisonous rhetoric of this year’s campaign.

But removing “party’ from the equation leaves the more momentous question: What should be the key markers for assessing the effectiveness of local prosecutors—often the most powerful single justice players in a community?

Is it possible, in fact, to establish science-based criteria for evaluating and fine-tuning prosecutors’ discretionary use of their power over who and when to punish?

For the next several years, an ambitious project funded by Arnold Ventures (AV) aims to find answers.

Understanding Prosecutors

Arnold Ventures, a Houston-based philanthropy that has supported research into emerging criminal justice issues across the U.S., from court fines and fees to sentencing reform and bail, has earmarked $7.4 million to help selected prosecutors’ offices around the country apply evidence-based research to support fairness and reduce racial disparities.

The money will be divided among 14 research projects covering 19 states and 40 prosecutors’ offices (occupied by DAs from across the political spectrum), according to a press release announcing the grants last week.

The projects include assessing the effectiveness of pretrial diversion programs, bail and detention policies and, perhaps most significantly, exploring ways of  restoring legitimacy and transparency to an office that is often seen as biased against poor defendants of color.

“Even though prosecutors exercise enormous power over peoples’ cases — and therefore their lives — how they use this discretion is understudied,”
said Rebecca Silber, director of criminal justice at Arnold Ventures.

Silber said she hoped the results of the various studies produce lessons that can be utilized by prosecutors’ offices around the country.

“We hope to leverage what these research teams learn to advance policy and practice in many more offices.”

One of the project grants will involve Middleton’s office, one of six DA’s offices around the country which will be studied by researchers at Texas Southern University in Houston to analyze the cost effectiveness of pretrial diversion programs.

In some ways, the lessons learned at Brian Middleton’s office provide early clues to how prosecutors’ meet the challenge of striking a balance between public safety and justice.

Middleton credits part of his success to the time he has spent on training and “professionalizing” his staff, as well as building a diverse work force representative of the people he serves.

Another key element, he says is staying abreast of the latest research in order to inform his office’s strategies—a science-based approach that is also key to the philosophy adopted by Arnold Ventures and other reform-oriented foundations.

But there’s another element that’s harder to quantify—but which has earned Middleton kudos not only from peers for operating a “model prosecutor’s” office but from the community.

Middleton still seethes about one of his earliest experience as a young defense attorney in the county, when the then-DA threw out a case the weekend before it was to be heard.

The defense team and defendants had spent months preparing for it.

“I never want that to happen to anyone else,” he said.

According to Middleton, a DA’s job is not just to convict but to ensure that people caught in the system, who are innocent until proven guilty, are “rehumanized.”

“People always focus on police brutality, but I always knew it was the whole damn system,” he told Matt Keyser of the  National Partnership for Pretrial Justice.

​“It was the judges. It was the prosecutors. It was the probation officers. It was the clerks in the courtroom. From the top down, they all mistreat these individuals.”

Middleton says he tells his prosecutors: ​“Don’t hang these cases over people’s heads when you know you can’t prove it. You can’t win every case.

“It’s not our job to seek convictions; it’s to seek justice.”

Editor’s Note: Arnold Ventures is also a supporter of criminal justice journalist training programs organized by the Center on the Media, Crime and Justice, publisher of The Crime Report.

 A full list of projects funded under the AV grant can be downloaded here.