I had a chance to sit down with Arlington/Falls Church Commonwealth’s Attorney Theo Stamos yesterday (Friday). See below for a transcript of our conversation, edited lightly for clarity and brevity. We covered a *lot* of ground (clearly, Stamos has an encyclopedic knowledge of the Commonwealth’s Attorney office) so if you want to skim, I’ve put some parts that jumped out at me in green highlighting. Also, to see the interview of Stamo’s Democratic challenger Parisa Tafti, conducted by my BV colleague Cindy, click here.
Theo Stamos: “What I would start off with is that I am actively seeking a third term and I’m proud to run on my record. I’ve never been a person who has been big on self-promotion. I’ve worked really hard in the sort of in the vineyards for a long time, on the front lines of the criminal justice system – and to make sure that the criminal justice system, at least in Arlington and Falls Church, works in the best way possible. I mean, is it perfect? Absolutely not. But to suggest that I’m not progressive or I don’t value alternatives to incarceration and diversion programs is just not accurate when you look at my record. And I served on the board of offender aid and restoration years ago, because I value the work that they do. And we work with them today on a regular basis – instead of incarceration, we do suspended sentences and community service as a way of making people recognize that wrongdoing does have a cost. Starting the drug court, all of those things, second chance – those are all innovations that I championed…”
BV: Do you think we’ve done enough in these areas?
Theo Stamos: “I think that it’s always going to be an issue of competing resources. We’re competing with all the other needs in the community when it comes to you the limited dollars. I mean, we’re very fortunate in my office that the county, our locality, provides 2/3 of my annual operating budget. And that’s very generous because Arlington is a progressive community that recognizes the fact that our domestic violence misdemeanor cases need to be prosecuted, or misdemeanor drunk driving cases need to be prosecuted. Because I’m sure you know that under the Constitution of Virginia, the Commonwealth’s Attorney’s only required to prosecute felonies… We prosecute all those cases [serious misdemeanors like stalking, misdemeanor domestic violence, drunk driving, assault and battery, injury that’s short of a felonious kind of act] because the county provides us with a budget to do that. And that’s important.
…In some counties they don’t have it, they will not do any misdemeanors…they won’t do disorderly conduct, destruction of property, hit-and-run… they won’t do those because they don’t have the funding to…and you go around the Commonwealth and it can be a very different look.”
BV: So you feel like within the budget that you have gotten with the money that you’ve gotten you’ve done everything you can possibly do in these areas?
Theo Stamos: “I mean, I would like to see an expansion of a number of programs, but it’s not going to be something that’s going to come from my budget because the county is not going to give that money to my office necessarily. We’re working on a couple different programs right now that we hope to roll out in the next six weeks or so, that is another innovation that we’re hoping to put forth that is going to be addressing the drug crisis and the opioid crisis. And it’s not just opioids, it’s of course heroin and cocaine and other things that have really taken our community pretty badly. We have a real spike in the fatal overdoses. It’s a problem. We just prosecuted a case not too long ago…where an individual provided the drugs that resulted in a fatality. And we prosecuted the individual who did that. The jury hung, out of some evidentiary issues, we’re intending to retry that individual, but those are hard cases to prosecute.”
BV: So why do you want to run for reelection? Because you enjoy the job? Because you feel like you’re getting a lot done? Because you feel like it’s an important?
Theo Stamos: “I think it’s a very important job. I think that it’s a job that requires expertise. It’s a job that requires experience and competence. I think it’s considerable that I have tried over a hundred jury trials, I’ve tried over a thousand if not more bench trials, I’ve supervised the prosecution of thousands more. This job is a hands-on prosecutor’s job. This is not a managerial job, it’s a leadership job. And in order to lead an office of 16 prosecutors, you have to have done the job. And I think it’s not something you can walk in and never having tried a case and be able to lead the office and to accomplish the task at hand. I go to court virtually every day, and I have to be prepared to handle motions and argue cases and be able to move on a moment’s notice and do that with a lot of ability and persuasiveness and advocacy skills. And that comes with having done the job.”
BV: When you first took the job, did you have the experience when you first took the job or do you have to gain that over time?
Theo Stamos: “Certainly as the chief deputy for a number of years, and having at that point when I ran the first time having been a prosecutor for many many years, more than two decades, I certainly had the experience and the ability to do the job. The question was, how do I lead a group of individuals and whether I could command their respect. And I do. Because they know how hard I work. They know what kind of trial lawyer I am. They know what I demand of them in that kind of courtroom. And so I think that’s important. And I think that my message to voters as I knock on doors, which I have been doing and getting very good feedback is there are three things that I want voters to know about me. And that’s one,that public safety is always front and center for a prosecutor’s office and has to be. I don’t think most people who look at the office could disagree that that’s an important component of what we do. The second thing is protecting our crime victims, and in this national debate they’re not talked about enough. I’d like to see an expansion of services for our crime victims; they’re very limited in Virginia. We talk a lot about what we can do for defendants and I’m all for that, but I like to talk more about what we can do for our crime victims. And then third and just as important is making sure that we provide offenders with alternatives to incarceration. It is of significance to note that the Arlington County Jail population is the lowest it’s been in more than five years. That is not an insignificant fact. And it’s a product of not ‘tough on crime,’ it’s a product of being smart on crime. And I think that’s a point that the voters of Arlington and Falls Church need to be made aware of. And I think that those things, plus my experience in the job, my sense of what’s right and what’s wrong, how you exercise prosecutorial discretion are absolutely in sync with the values of this community.”
BV: Do you think if you don’t have the type of experience that you had coming into this job or something comparable to that, can you do the job? Or would you just say you’re not qualified?
Theo Stamos: “I think it’d be really hard to come in and be the chief prosecutor, never having prosecuted a case, never having tried a jury trial, and never having tried a bench trial. I think that would be a very tough ask.”
BV: What about your opponent?
Theo Stamos: “I don’t know, but my understanding of her background, it was mostly in appellate work, which is absolutely…I celebrate the work the Innocence Project does. I mean I actually was co-chair of the committee on justice and professionalism, which I started our best practices committee, that I co-chair with Mike Herring, who is the Commonwealth’s Attorney in Richmond. I invited Ms. Tafti’s boss to speak to our group…about two years ago now so that we could learn, when you had someone knock on your door as the elected Commonwealth’s Attorney from the Innocence Project and they say we think you have prosecuted an innocent person and we think this particular case resulted in a wrongful conviction. So my goal was to have Shawn Armbrust, who came and spoke to our group, talk about how do we work with you, what can we expect from you, what should you expect from us, how do we collaborate to get to the right result? Because no prosecutor wakes up in the morning wanting to convict an innocent person. That’s one of the biggest nightmares that we have as prosecutors. You know that old nostrum about it’s far better for one guilty man to go free than for one innocent man to be convicted. That’s true. And prosecutors think that.”
And I will also point out that in looking at some of the questions that Ms. Tafti was asked by Ms. Cunningham, the response that Ms. Tafti had was that a prosecutor’s job is to prosecute crime. That’s not what it is. The prosecutor’s job is to do justice; that’s our job, and we really do embrace the mantle that Justice Jackson bestowed on prosecutors as ministers of justice. That’s what our portfolio is.”
BV: You have to operate within the system; how much discretion does the Commonwealth Attorney have to say, you know what, I’m in Arlington, this is a progressive community and I don’t think that’s the way we should act…it could be in any area.
Theo Stamos: “I think that’s a really important question, because I think that the exercise of prosecutorial discretion is a big feature of the job. But what does that really mean? In my mind, I think it’s a philosophical discussion, but I don’t believe that the exercise of prosecutorial discretion extends to me as a member the executive branch who takes a duty to uphold the law to disavow any legitimately enacted pieces of legislation. So which is to say, when someone says, as a member of the executive branch who takes an oath to uphold the law, I’m going to start on day one not prosecuting, let’s say, marijuana possession, I think that is not an appropriate exercise of prosecutorial discretion. It’s hugely anti-democratic, because these are laws that have been passed by a democratically elected legislature. And it may well be that members of your community think that’s swell, I think marijuana should be legal too, but we can’t seem to persuade the legislative branch to adopt that position, so we’re gonna do an end run around the democratically elected members of the General Assembly, who for whatever reason haven’t been able to marshal the power of their ideas to repeal the marijuana laws.”
BV: Or to get enough votes…
Theo Stamos: “That’s what it is, right. And then you have someone who is a different branch of government that I’m not going to enforce that law. And you see this happening now to great confusion just across the river in Maryland, because Marilyn Mosby, who’s the state’s attorney of Baltimore, announced several weeks ago that she was no longer going to prosecute simple possession of marijuana. Well, the chief of police in Baltimore said, well that’s all fine and well, but it’s still against the law in the state of Maryland, so my Police Department is still going to enforce the law…So what this sowed was great confusion among the community, because they’re like well, is it legal or is it not? And we see the same thing unfolding down in the City of Norfolk where my friend Greg Underwood announced that he was not going to prosecute simple possession of marijuana. And the circuit court judges all together now have said when one of his assistants moved to dismiss the first charge that was on appeal, that they were going to dismiss the charge…in Virginia…you have to present good cause…and when the judge asked the Assistant Commonwealth’s Attorney, what’s your good cause for moving to [not press] the charge, the assistant said my boss no longer wants to prosecute. Then the judge said, well that’s not good cause, it’s still against the law in Virginia, so the judge denied the motion.
So those kinds of pronouncements, when they’re not thought out and they’re not in conjunction with what the law really is, it sows a lot of confusion in the community. So I can exercise my discretion by saying, as I have, I will no longer seek…any jail time for first offense marijuana. That is, I think, an appropriate exercise of discretion – we still prosecute the case, but we’re saying within the contours of what we think is appropriate for Arlington, we’re not going to ask that there be any jail time…”
BV: Even though the law says there’s jail time?
Theo Stamos: “The law says you can be jailed up to 30 days, but you can also say we’re just not going to seek jail time…”
BV: You don’t see that as an end run around the democratic process?
Theo Stamos: “I don’t, because I believe that’s an appropriate exercise of discretion.”
BV: So it’s a judgement call?
Theo Stamos: “Let me also say this. If it’s okay as an elected criminal attorney who takes an oath to uphold the law, and you say I’m not going to uphold this law or this law because I don’t like it. That’s fine if it is in concert with your own beliefs. But what if you have someone who, let’s say, is a gun nut, who says I don’t think you need to have a concealed carry license in order to carry concealed, I think people should carry concealed whenever they want. Do you think that that…I mean our community would go like, well no.”
BV: It gets to how much power the Commonwealth’s Attorney should have and if a community elects a certain person to be their Commonwealth’s Attorney, should that person reflect more the values of that community or more lean towards, well this is the state…
Theo Stamos: “Well, I’m not so sure that when you take an oath to uphold the law, you get to pick and choose which laws you enforce across the board.”
BV: But like you said, on marijuana, you could just choose not to seek jail time.
Theo Stamos: “Right.”
BV: Or on other crimes, could be a heinous crime, you could seek the death penalty or not seek the death penalty, for example. You can say I’m going to go for life in prison without the possibility of parole; how do you decide? The death penalty is on the books.
Theo Stamos: “Well, I would argue that because of my experience, my ability, and the way I navigated that issue, in my tenure I have already brought to conclusion four capital murder prosecutions, not one of them having to go to trial, which spared this community the anguish, the difficulty, of having to assemble jurors to sit in judgment and perhaps consider that ultimate punishment. It also, because of my ability and my knowledge of how to handle a case, how to supervise the prosecution of those cases, we spared the family members of those victims the absolute anguish of having to go through a capital murder prosecution – four different times. And I will tell you that, when you talk about the death penalty, it is on the books in Virginia, and I think it’s a very positive development that I think something that is going to be off the landscape soon…I understand that there are three people in Virginia on death row, that’s all. But when the question is put to me about capital punishment – and I understand my opponent says she’s never going to seek the death penalty – that is a philosophical decision that she has decided is appropriate, but I would just ask the question, if you have a situation, where let’s say you have a case where there’s a white supremacist who goes into the AME Zion Baptist Church on a Sunday morning and kills the first 15 people sitting in the pews simply because of the color of their skin, are you telling that community that that’s unfortunate, but we are not even going to consider asking a community to weigh in on that decision?”
BV: Do you think there are some crimes so heinous that the death penalty is warranted?
Theo Stamos: “Well I think the law in Virginia tells me that.”
BV: Right, but what do you think?
Theo Stamos: “I’m not trying to be cagey about my response, but I think that one of the things that in the four cases that I just referenced where we charged capital, I have a process where we sit down and the first thing with my deputies, and my chief, my director of Victim Witness, and of course the input from the family members. But without them being there, we have a conversation, and the first thing we talk about is unquestioned guilt. That has to be the first and that is the most significant aspect of that decision. And then you look at other aspects of the case – the defendant’s prior criminal history, the heinous of the crime, the input of the victims….We look at that and then we make a determination as to the appropriateness of charging.”
BV: One of the criticisms of capital punishment is that it disproportionately impact communities of color, that it’s racially biased. Do you look at that, is that a consideration?
Theo Stamos: “I’ve heard those arguments. I will tell you in Arlington, the last number of cases that I was involved in were actually individuals, who in Tommy Wong’s case he was an Asian-American, the perpetrator was James Caroline, who was African American. In the Mack Wood case, it was a murder-for-hire scheme that was brought about by the son of Mack Wood, Mack Wood Jr. Mr. Wood was Caucasian, his son was Caucasian, and two of the individuals he hired were African American. And in other cases we’ve had- Geoffrey Cooper, which is a capital murder case, he was African American and his victims are all three African American – his wife, his girlfriend, his daughter all murdered in the same hotel room. So I think that our experience doesn’t have that dynamic that’s held up as being an example of the disparity, and that’s just how it kind of played out here in Arlington. And Robin Lovett, who was also convicted of capital murder, that was a black-on-black crime. The victim was a wonderful fellow who worked at the billiard hall down in South Arlington and Robin Lovett was a career criminal, who notwithstanding the fact that the victim made him breakfast at 2 a.m., he robbed him and stabbed him and he was sentenced to death. That was ultimately commuted by Governor Warner because of some issues post trial, but so that was a black-on-black case.”
BV: So going back to the role of the Commonwealth Attorney, do you think that the main job should be maximizing convictions or not?
Theo Stamos: “No, and it was suggested that my office is a mass incarceration machine on steroids. That just complete completely disregards how my office operates. I quote my friend Howard Gwynn, who’s the Commonwealth’s Attorney in Newport News, and I’ve said this in other settings – if I have a prosecutor who knows his or her conviction rate, I’m gonna fire him. Because that’s not what we’re about. It is not about notches in the belt, it is not about how many people we send to the penitentiary. It’s about making sure that we serve the interests of this community, getting back to those three things: public safety, protecting crime victims and making sure that individuals who simply make a mistake are not forsaken. That’s not how we operate.
BV: Keeping people out of jail, how important is that?
Theo Stamos: “It’s very important, it’s very important, because jail is not a place you want to be…So many of our dispositions, if you were to come to court, and we do a tremendous number of re-dispositions that are suspended time, community service, probation, anger management, counseling, those kinds of things in order to avoid incarceration. Today’s a Friday. Right now as we speak, Judge DiMatteo is going through a sentencing and revocation docket that results in people coming before the court because they’re on probation and they either accrued a new offense or they continue to test positive for drugs or they are not going with the program that their probation officer set in motion. So the last thing that we want to do on Friday is to see a bunch of people walking through the locked door, but sometimes you have to do that because you have to hold people accountable or if they’re a danger to the community.”
BV: Another topic that’s come up is the discovery rule. What’s your view – should everything be turned over?
Theo Stamos: “I will tell you that my office has always been an open file discovery in felony cases. When I got elected, I expanded it to include all cases – misdemeanors and felonies alike. We have for years provided far more discovery than was required under the Virginia rules. And that was something that I was proud of, because I thought was the right thing to do. It never made sense to me…Virginia had very limited discovery and that wasn’t fair. The idea that a defense attorney is not entitled to look at his client’s reports or the witness statements, unless there’s something exculpatory in there, made no sense. So we make those available. What we don’t do is we don’t make copies available, which I know is something that the defense bar sort of bristles at. But let me tell you, the new rules that were enacted by the Virginia Supreme Court that were to go into effect this coming July, but have been postponed because of some resource issues, also don’t require us to turn over copies. We’re going to get to that….”
BV: What’s the issue with copies?
Theo Stamos Stamos: “Part of it has to do with the ability to adequately redact reports that include identifying information of victims, those kinds of things. And that’s what there’s a concern for that. So we’re working towards doing that at some point.”
BV: So how do they, if they can’t get copies, what do they do?
Theo Stamos: “Well, they could they come in and they review a file they take notes…”
BV: They have to sit in there and…
Theo Stamos: “I recognize it is difficult sometimes.”
BV: I mean, if there are like hundreds and hundreds of pages…
Theo Stamos: “Well we’ve made accommodations for cases that have multiple…we have right now three murder cases pending and we’ve made the whole file available to defense counsel…with the protective order. Because one of things we’re concerned about is, in the under the rules in Virginia in most places elsewhere, those documents become the property of the defendant. So what we want to avoid is a defendant getting a hold of those things and then exploiting them for his or her own use. So there are a lot of considerations that the general public doesn’t think about that have to do with protecting victims, protecting witnesses…”
BV: You can redact that stuff, right?
Theo Stamos: “We can, but it gets labor-intensive and it’s a resource issue for us.”
BV: The grand larceny threshold is another issue that’s come up. What do you think about raising that and how high should it be? It wasn’t raised for years.
Theo Stamos: “It wasn’t, and I’ll tell you I if you go back there’s something you can find online where I was speaking at a gathering at Washington and Lee High School several years ago; it was a group of folks that were talking about criminal justice reform. And I was there with my Victim Witness coordinator and I said look, you want to talk about criminal justice reform, I’ve been lobbying to raise the threshold. That was several years ago. It was $200 and it was too low for too long. I would have liked to have seen it go higher…”
BV: How high do you think we should have been?
Theo Stamos: “I think it’s now raised to $500, right? I mean, some people think that’s not high enough; I’m one of them. But it is the law. But I will tell you, because it was so low in another exercise of prosecutorial discretion, what I did was, in my office I raised it to $500. Which is to say if some kid is over at Nordstrom stealing a North Face jacket that costs $450, we didn’t treat that – I mean it may have been charged as a felony, because that’s the magistrate system, which is a whole other aspect of the criminal justice system that is not discussed, because it too in the weeds, but if you want to really change the criminal justice system in Virginia, eliminate the magistrate system and let the charging decision be by the prosecutor. And that’s an in-the-weeds discussion to have, but it’s one that needs to be had, because that’s where so many of these problems begin. Not that the magistrates aren’t good people – they are. But the system that’s in place removes a lot of the early decision-making from the prosecutor…”
BV: The magistrates are not elected, right?
Theo Stamos: “No, they’re appointed by the judges. But they’re very key. When you talk about, for instance, I was looking at some of the responses from Ms. Tafti about cash bail, which is I’m sure another topic you may want to talk about…But getting back to the grand larceny, so what we did is they may have been charged with a felony grand larceny, but if it’s a shoplifting case that the individual has no prior record, we would amend it to a misdemeanor. And in many cases they would result in not having a conviction at the end of the period of probation, community service, and then the charge would be dismissed.”
BV: So that’s another case of using your discretion, even though it’s the law…
Theo Stamos: “But see you still are prosecuting the charge. You’re not saying I’m no longer going to prosecute x. You say I’m going to prosecute it but in the contours of enforcing the law, you’re going to exercise your discretion to say, I’m not gonna seek a felony amount, I’m not gonna seek active jail time, that I think is completely appropriate…for instance in drunk driving cases, you know if second-offense DUI or an elevated BAC at first defense it has a BAC above 1.5, there’s a mandatory 10 days in jail…we can’t change that. There may be an evidentiary issue that makes you amend it to a first offense, you eliminate the mandatory time. I mean there are things that you do within the context of a prosecution that is an appropriate exercise of discretion, but it doesn’t result in I’m no longer going to prosecute this offense; that I think is undemocratic.”
BV: You prosecute but maybe seek a less severe penalty or something like that.
Theo Stamos: “Yes.”
BV: We already talked about the death penalty, unless you have anything else to say on that topic.
Theo Stamos: “I’m not for [the death penalty], but it’s as I said, it’s on the books. And there are those rare cases where I think it has to be considered. Thankfully in Arlington, we don’t have a lot of those, but as I said my in my tenure I brought to conclusion four prosecutions that began charged capital, and we did the right thing in those cases in not having to take them to trial.”
BV: So you would like to see the death penalty gone?
Theo Stamos: “I think maybe the way to say it in some respects, I will go back to those cases where the act is so heinous and is so great and the destruction is so wide that people say, well, life without parole. Then I sometimes will ask, and I don’t know the answer to the question, but why are we so quick to forsake other inmates in those penitentiaries…staff, the wardens that work in the infirmary. Some of the most horrendous cases you’re going to read are cases of inmates who have committed murder in an incarcerated setting.”
BV: Do you think mentally ill people should ever belong in jail, or if not, what should happen?
Theo Stamos: “Well, that’s a huge problem for the system, it’s a huge problem for the criminal justice system. I will tell you that one of the things we’ve been working on that I’ve championed and Lisa Tingell, one of my senior assistants in the office. has led the work on, is working with a forensic team in the county to divert folks who have serious mental illness who have gotten themselves embroiled in the criminal justice system, to remove them from the jail and give them the services they need to stay compliant with their medicine, stay out of trouble, get them housing. We are working very hard on that, and we need more money to do it right. It’s not just my office, it’s the sheriff’s office, it’s pretrial release. You know, right now, the forensic team is one and a half full-time employees; that’s not enough to do the work to screen the individuals who needs the screening, to take them from the jail, to divert them at the magistrate’s window from jail. It’s a complicated process, we’re working on it, we’d like to expand the program, but we need money to do it.”
BV: So basically you’re saying your office is underfunded for all the things you’d like to do or think are important to do?
Theo Stamos: “I mean, I think that the jail needs more resources. I mean, most of the things Ms. Tafti talks about wanting to institute, I’m already doing, as a matter of fact. Using a pretrial assessment tool, we have that. But what we don’t have are enough people to actually look at that, use the tool to determine risk of flight or danger to the community. because they don’t have enough people to go through and screen individuals who are brought into court so we’d only get them in certain percentage of our cases. That’s a concern that we have.”
BV: Have you made the case to the Arlington County Board that your office needs more resources?
Theo Stamos: “I think Sheriff Arthur has made the case, that’s for an agency that runs that program.”
BV: Same thing with drug addiction as well, which also can be related to mental illness, what do you do with people with drug addiction problems, do you divert them?
Theo Stamos: “One of the things that I’m most proud of is our drug court. It’s a robust drug court. I’m working as we speak with Judge DiMatteo on expanding eligibility. But we have a lot of our offenders, which people don’t recognize, are not Arlington residents. And when you’re not an Arlington resident there’s a whole raft of services you’re not eligible for. So as a consequence, we have – and I would say if you talk to Ron Revish, who’s the chief probation and parole office – he will tell you that the greatest percentage of individuals on probation in Arlington are residents of the District of Columbia or the state of Maryland. And when that is a fact and they’re supervised in their home district, we lose some amount of control over what kind of services are provided or if some of the right services are provided. So there’s some structural problems with being able to attack these kinds of issues in an across-the-board kind of way. We’re always butting up against, can’t do this, can’t do that, not an Arlington resident. Drug court is one of them, you have to be an Arlington resident. So we’re trying to expand it to make sure that the drug court remains a vital alternative to incarceration. But we need to maybe tweak how it works. And I’ve been talking with Judge DiMatteo about working in conjunction now that Aelexandria has a drug court, Fairfax has a drug court, to maybe – and this is just kind of like in the hugely beginning discussion stage, maybe some sort of MoU – where we can use those resources for at least…”
BV: Sort of a regional approach? This area is definitely balkanized in many ways.
Theo Stamos: “Well yeah. There are structural impediments to being able to do as much as we want to do. And we’re working on them, but there are a lot of different ways to do it and a lot of different people need to be at the table.”
BV: Right, okay. So on cash bail, that’s definitely come up in this campaign, and you made an announcement which was immediately criticized as not being enough. So what’s your view on cash bail, where are we right now on this?
Theo Stamos: “I do have to point out, because I think one of the things that Ms. Tafti talks about is her view on cash bail, and it says here we should adopt a risk assessment tool. Which we have done, we have we have a risk assessment tool, it’s just that it’s not used enough because the pretrial services office of the Sheriff’s Department doesn’t have the manpower to do it in each and every case. That’s a concern. But I think one of the things she talks about is that she would only seek secured bond in cases where there’s a risk of flight or danger to the community. That’s my policy now. I mean that’s what we do. Risk of flight and danger to the community are the two things that code tells us to consider. And when I announced a while ago to put a finer point on it that in low-level misdemeanors which don’t involve like a violent behavior or drunk driving, what we do is we inform the court of the criminal background – any failures to appear, whether the defendant is wanted in another jurisdiction, whether they failed to appear in another jurisdiction, and what the facts of the case are – and then the judge makes that determination. I can’t eliminate cash bail from the system and neither can the person running for my position. It’s a judicial determination. And the judicial determination is informed by argument of counsel. But what that information provides to the court is what the judge needs to decide. And one of the things that the secured bond argument has generated is when you remove that tool – which is in some cases it’s an appropriate tool; as Judge DiMatteo will say, she’ll set a bond or that Judge Newman will set a secured bond based on criminal history, all these things – if you remove that, then you’re left with a binary decision by the court. And it’s going to be either hold the individual without the ability to post bond at all, or release them on personal recognizance. And that binary decision has now defaulted to more people being held pretrial, because the judge doesn’t want to take a chance. So that the uptick in pretrial detention is a feature of what occurred, for instance, in California, where at the 11th hour, the ACLU of California and the public defenders and other activists withdrew their support for the legislation that Governor Brown ultimately signed. Because they were concerned about pretrial detention going up. And I believe that’s been the same thing in Maryland; there’s been an uptick in pretrial detention. So if you’re going to remove that tool, which that’s fine, we need more services for pretrial release that assures the judge that the individual will not see the jurisdiction, will not reoffend while they’re out on probation. These are concerns that we have to have because the Code says we have to have.”
BV: So when challengers raise this is a big issue, what do you think that’s all about? A talking point?
Theo Stamos: “Unfortunately, I think it is a sort of sloganeering, because if you really do want to talk about the issues, we have to have this kind of conversation which doesn’t lend itself to it 30-second sound bytes…So I think one of the things that my opponent talks about is there should be a presumption of a release in the Virginia Code. There is already a presumption of release in the Code, except for certain categories of violent felonies, which in some instances is a presumption release. All these other charges, a number of possession charges, felony grand larceny, the Code already says the court SHALL admit to bail – in the Code already – shall admit to bail unless there is probable cause to believe the defendant presents a risk of flight or a danger…So what my opponent says she wants to institute is already part of Virginia law.”
BV: So why do you think she’s saying what she’s saying?
Theo Stamos: “Because I think there is a sense that the criminal justice system is completely dysfunctional across the country. I don’t want to talk about what’s happening in Baton Rouge or Baltimore, I think I need to talk about what’s happening in Arlington. And I think that’s what the voters of Arlington and Falls Church want to know about. And I don’t want folks in this community that I’ve been a part of for thirty plus years, I don’t want them to think that this is a broken system. We can always improve upon it absolutely, and I want to work to do that. Not just for defendants but for crime victims as well, which are completely disregarded in the national discussion.”
BV: There is a national context here, no doubt…
Theo Stamos: “I think it’s a good discussion that we should have. I agree, the idea that there should be no – this is this is part of this whole movement – I think all the ACLU chapters across the country have made this a talking point on their platform, which I celebrate. No incumbent, Commonwealth’s Attorney, District Attorney, State’s Attorney should ever run unopposed, that’s their mantra. And I think that that’s fine. I welcome the ability for me to go out into the community and convince people why I should get another four-year contract. And I’m happy to do it because I think I have a record to run on that is meaningful to this community.”
BV: Civil asset forfeiture just came up at the Supreme Court, actually a unanimous ruling…what do you think about it? Should property ever be taken by the government authorities when someone is charged with a crime?
Theo Stamos: “I think there are cases where, certainly in our office and in conjunction with the police department, we do use the tool of civil asset forfeiture. But I have guardrails on that. And what I mean by that is that even though in Virginia you are able to seize assets that you believe are the product of illicit or illegal activity, you don’t have to have an underlying criminal charge; the law allows you to do that. I have adopted a policy that unless we have an underlying criminal charge, we’re not going to proceed on a civil asset forfeiture. I think that is a guard against any abuses. We use the asset forfeiture statute in my office almost exclusively in regards to drug trafficking. So some eighty-five percent, maybe even more, of our asset forfeiture work – which is not a big feature of our office – is against the drug traffickers who are involved in bringing drugs into the community. They have obviously money cached in the car. They have information on their phones that indicates their involvement in drug trafficking. They’re there to meet police officers, undercover officers to sell heroin to, to sell cocaine to, importing large amounts of marijuana into the community. So we do use it as a tool. It’s not something that is a big feature of our office. I think what you hear about mostly, the Washington Post did a very good piece a number of years ago, a series a number of years ago, that exposed some of the abuses that were underway, that unfortunately took place in other jurisdictions and also by the federal government. But I will tell you that the statutory scheme in Virginia for civil asset forfeiture is a very deliberate process that has a lot of rights that the defendant is protected by, which they should be. So if you have a case where someone is engaged in drug trafficking and they drive into Virginia to sell an amount of cocaine or heroin and they also have $10,000 in cash, $25,000 in cash, the idea is to take the profit out of their wrongdoing. I mean, if the General Assembly decided next week that they wanted to eliminate asset forfeiture that’s fine, but I do think that you want to be able to use it in an appropriate way in an appropriate case, and I think we do it that way.”
BV: So let’s get to this, this is one of the big ones I keep hearing criticism about – the amicus brief regarding Governor McAuliffe’s restoration of ex-felons’ rights. Why did you sign that? It was mostly Republicans, right on there?
Theo Stamos: “Well it was actually Republicans, independents and Democrats who signed the amicus brief…”
BV: Wasn’t it written by a Republican?
Theo Stamos: “It was Jim Plowman, who’s a Republican Commonwealth’s Attorney. There were some forty, I forget the exact number – a lot of independents, Republicans and a handful of Democrats. I will tell you that, as I said at the time, that I fully appreciated and endorsed the goal. I work with Arm in Arm, which is a reentry program that is led by Kelvin Manners, who’s a reentering citizen, to make folks get back into the community. And one of those things that makes them feel part of the community is the ability to vote and I fully support that. But the problem was when the governor did what he did, when he did an en masse restoration of rights of two hundred six thousand felons, it wasn’t done in a way that you could make sure that those people were actually eligible for their restoration. We had people still on probation, we had people sitting in jail.
I had a guy who actually on April 20th of 2016 was arrested, he was a violent felon, had a violent felony conviction, he was using a firearm on April 20th of 2016, had an issue with some fellow who owned a small car lot near Columbia Pike and got into a gunfight with him and tried to shoot and kill the guy. He was arrested for attempted murder, use of a firearm in the commission of a felony, and a violent felon in possession of a firearm. He was taken into custody of early mornings of April 21st. On April 22nd, as he was sitting in Arlington County Jail awaiting his trial, preliminary hearing in trial on those charges for which she was subsequently convicted, his rights were restored.
But the bigger problem for me, and what the governor’s people never really recognized, is by doing what he did in that en masse way, he fast-tracked the ability of violent felons to get their gun rights back. Because under the Code of Virginia, a precursor to getting your gun rights restored is you must first get your voting rights back…Governor Kaine tried to do the same thing when he was governor and he was instructed in a memo I believe by his then counsel Mr. Rubin that you can’t do it this way, it has to be on an individualized basis, which the Constitution that Virginia calls for and the Supreme Court ended up agreeing with those of us who signed the brief. But every single one of us on that amicus brief said we would support the restoration of voting rights.”
BV: I’ve read the amicus brief, there’s a lot in there. So where would you rank voting rights? McAuliffe’s going around endorsing people because they signed the amicus brief and supposedly oppose voting rights restoration. Do you think that’s a fair characterization?
Theo Stamos: “No, I don’t, I think it’s completely unfair. Because as I said, I was quoted at the time in the Washington Post saying I completely embrace the goal. If Virginians wanted to alter the Constitution in order to remove voting rights as a bar, as a penalty for a felony conviction, I’m all for it, I’m all for it. But unless and until that happens, I think it’s important – the rule of law is important. And if you have something on the books and it’s done in a way that is not clearly thought out and not in a prudent way and as violative of the law, which the Supreme Court of Virginia ultimately said it was, then I think that that’s something that you have to speak out on.”
BV: So you were concerned that McAuliffe’s plan was not well thought-out?
Theo Stamos: “It wasn’t executed very well.”
BV: Was it rushed?
Theo Stamos: “You’d have to ask them, but there were a lot of problems with that, and it was evidenced by just the glitches that I saw in my office. The other prosecutors who signed on, almost to a person I believe, had problems that they identified in their own jurisdictions as to how this wasn’t done. And I have to say, being able to remove a hurdle to getting gun rights restored for violent felons was a concern that I had.”
BV: Was serving on juries an issue?
Theo Stamos: “I mean that’s more of inside baseball sort of concern, if you really want to get in the weeds. In Virginia, if you’re convicted of a felony, if you testify in court, the jury is instructed that you are less believable as a convicted felon than a witness who is not a convicted felon. So jurors take an oath when they’re sworn to uphold the law, so there’s that concern. And then if you have a convicted felon who’s a child molester, or has committed a carjacking. I’m not saying you can’t be rehabilitated, you can be. But if you’re sitting in judgment of someone who’s being charged with child molestation, that makes it sort of difficult to determine whether that juror is really going to give the Commonwealth a fair trial.”
BV: So you would say there were a number of issues, I guess, I don’t know…with process and also substance?
Theo Stamos: “I understand that the governor celebrates that initiative, and I…”
BV: Maybe he’s running for president; he mentions that at almost every appearance as one of his major accomplishments…
Theo Stamos: “And I’m glad he achieved it in the right way.”
BV: In the end.
Theo Stamos: “Right.”
BV: At her kickoff, your challenger claimed that you opposed reform, implied that your office is not transparent and accountable, declared that you believe we can “incarcerate ourselves out of our social problems,” and stated that in Arlington is “long past time that we shift our philosophy to one of ‘safety is justice and justice’.” Do you have any comments on any of that?
Theo Stamos: “I find the transparency issue sort of interesting because I don’t know how much more transparent we can be. We conduct our job in a public courtroom. Our workmates in a prosecution are members of the public. There are victims, there are witnesses, the defendant is a member of the public. Members of the public serve on juries and on grand juries. You come to court and you watch our prosecutors do their job in real time, which is trying cases, making arguments, arguing motions to suppress. So it’s the opposite of a lack of transparency; it’s all front and center. You can even sit outside of courtroom 3B at the Arlington County Courthouse and listen to a prosecutor negotiate with the defense attorney about a resolution of the case. It’s done almost entirely out in the open. So the lack of transparency, I don’t quite get.”
BV: So you don’t buy that one. And on the ‘accountable’ point, I take it you don’t buy that one either?
Theo Stamos: “Well I mean, accountable, I think that’s what we’re talking about right now. I’m running for reelection, that’s the apex of being accountable.”
BV: You already said you don’t believe we can incarcerate ourselves out of our social problems.
Theo Stamos: “I will go back to the degree to which the inmate population has been reduced in the Arlington County Jail over these past five years to the lowest it’s been. And that is the opposite of incarcerating ourselves out of this problem.”
BV: Do you agree that ‘safety is justice and justice is safety’, as your opponent says?
Theo Stamos: “I’m not sure what that means.”
BV: Your opponent also claimed at the ACDC kickoff that you oppose giving people a second chance by expunging minor marijuana or alcohol convictions that occurred before people were 21 years old, that you also oppose decriminalization of marijuana and prohibiting the death for the seriously mentally ill. How would you respond to those critiques?
Theo Stamos: “I think the Virginia Association of Commonwealth’s Attorneys took certain positions that my opponent does not agree with. I will say, personally, I think we should – if you want to talk about reform – I agree we should look at reforming the expungement statutes in the Commonwealth of Virginia. I think that’s an appropriate thing to do. But when my association takes a position, that’s different than what my own personal decision is. So I think reforms can be… for instance, the association didn’t take a position on Rip Sullivan’s red flag law. That was something I thought needed to be accomplished. I worked with Rip on the language in that statute; it’s a long and detailed statute. But I do think that as an individual, I have different positions than the association might have. I think that’s just a feature of how much I can get to Richmond and actually do lobbying as opposed to doing my job as Commonwealth’s Attorney.
But I will say that if you want to talk about some meaningful criminal justice reform, which I’ve talked to Alfonso Lopez about and he’s agreed, and obviously the license suspension issue is a big feature of that, I think that should be eliminated for any kind of penalty for crimes that don’t involve drug, drunk or dangerous driving. There’s no reason why a person who gets convicted or pleads guilty to possession of cocaine, it has nothing to do with driving, should lose your driver’s license, that makes no sense to me. It doesn’t make any sense that you’d lose your privilege to drive for something that has nothing to do with…I agree that we should revisit the expungement statutes. I think there should be an opportunity say, after ten years if you have no other violations of law, it should be erased from, a misdemeanor charge should be erased from your record. Now I will say… certain kinds of crimes maybe a future employer needs to know. That you have a felony conviction for embezzlement, is a bank going to want to hire you? Or even you embezzle funds from an employer and you’re going to be hired for someone else. I think there’s a tension there between what the community should be made aware of and what is fair to the individual.
But some of these cases which a person offended at nineteen years old and they’re now thirty five years old and they can’t get a job because that conviction is still extant, I think that’s draconian. I will tell you a specific case that I found where we needed to change the law. And this is not something that is easily done. But one of the questions that was put to me a number of months ago by the human resource division of the police department was a young man, in his early 30s, was applying for a job as a police officer in Arlington. He passed through all of the tests, they loved him, they wanted to hire him. When they ran his criminal history, it turned out that he as a 20 year old had a conviction that resulted from a situation where his father was involved in the criminal justice system as a defendant. Police in New York came to this kid’s house looking to serve an arrest warrant on the father. The kid lied to the police, said his father wasn’t home. They went into the home because they had an arrest warrant. They found his father hiding in the closet. They took the father into custody and they charged that 20 year-old with false statement to law enforcement. That’s a crime involving lying, cheating or stealing. When they ran his criminal history, there was this only thing on his record. But the problem ion Virginia is that fact that he has that conviction for lying, cheating or stealing, made him unable to testify without being impeached with that conviction. And because of that, the police department didn’t hire him, because they knew that they’d have to turn that over, it’s exculpatory, and a defense attorney would be required to know that when that officer were to testify about anything…so because of that infirmity, because the law doesn’t say like if it’s 10 years old…that’s crazy to me.”
BV: For the rest of your life?
Theo Stamos: “Yep, well pretty much.”
BV: So one time when you lied to protect your father…
Theo Stamos: “If you have a misdemeanor conviction or a felony conviction, that is exculpatory evidence that needs to be turned over to the defense, because it’s used to impeach your testimony. And obviously one of the key jobs of a police officer is to testify in court. And our department says if you have that infirmity we’re not going to hire you.”
BV: Wow, so that person was not hired?
Theo Stamos: “Not hired.”
BV: That’s crazy.
BV: I wanted to ask you about your endorsement by former Del. Dave Albo. This sort of ties in to the broader question about whether you’re a Democrat or not.
Theo Stamos: “One thing I’ll tell you about Dave, he was always a worthy opponent of mine. And we’ve had cases over the years, and I respected the fact that he thought I did a good enough job to be reelected.”
BV: I mean, it’s your call if you want to have Dave Albo on your list, that’s the question…
Theo Stamos: “I don’t think that means I’m not a lifelong Democrat because someone who’s a Republican who was a criminal defense attorney…and he’s someone who I think having practiced in many jurisdictions and having an ability to assess the ability of prosecutors who are not of the same party to be able to say that I’m worthy of reelection because of the way I run my office, I think that means something.”
BV: Your opponent issued a press release that said, “Stamos Touts Endorsement from Extreme Right-Wing.”
Theo Stamos: “Well he’s not.”
BV: I actually looked at Project Vote Smart and he’s pretty right on almost everything. Do you have any response to this?
Theo Stamos: “You know, I’m happy to have the support of individuals from whatever party they are part of, who you respect the work that I do as the Commonwealth’s Attorney, that I’m a fair and approachable person. Most of the time, they probably don’t agree with me, but I think that he respects my open-door policy. All of these attorneys who signed that letter appreciate the work that I do and the degree of professionalism and ethics I bring to the job, I think is important.”
BV: So in general, this whole argument that you’re not really a Democrat floating around out there – I think this relates to your support for John Vihstadt – you’re already talked about your long friendship with him. But I mean, have you ever supported any other Republicans?
Theo Stamos: “You should look at my donations…my donations to Virginia Democrats, it’s pretty significant, in the thousands of dollars, compared to the donations that my opponent has made to Democratic candidates.”
BV: And have you campaigned for Democrats, for instance when Tim Kaine was up?
Theo Stamos: “Oh yeah. I worked on Brian Moran’s campaign, I worked on Chuck Robb’s campaign. My first vote was part of the Young Democrats when I was in college for Jimmy Carter. I was very proud to support Michael Dukakis, a fellow Greek for president. As I said back in my announcement speech, I held up signs for Hubert Humphrey – I’m that old – on the South side of Chicago. My dad was a Democrat…I was of course in elementary school, but still, yeah I knocked on doors in Pimmit Hills when Chuck Robb was running for governor. I made calls on his behalf. And he doesn’t know me, but I went to some election headquarters that they had in Fairfax…and knocking on doors and making calls, I’ve done all those things.”
BV: Would you agree that today’s Republican Party has gone off the right-wing deep end?
Theo Stamos: “This is a great discussion to have on this broader picture of where our politics is. I wish we could come together, I really do. And I think part of that coming together is on who we are as Americans, who we are as a democratic society. I think that there’s so many things that need to change, and one of them is not throwing barbs at people, because they have someone who’s supporting them who is of another party. I think that is important, I think we need to have that discussion.”
BV: When I was younger, that totally made sense to me. But today? I started off as a Teenage Republican, actually back in Connecticut in the late seventies. It was a very different time. And in the Northeast we had Republicans like Jacob Javits and Lowell Weicker and John Chafee, they’re today known as liberals. But today I just don’t see that anymore. To me it’s the party of Trump now, which is a party of bigotry.
Theo Stamos: “Or maybe the party of Larry Hogan.”
BV: It’s not, though. I mean, Larry Hogan’s fine, but it’s not the party of Larry Hogan. It’s the party of Mitch McConnell, it’s the party of Donald Trump, Paul Ryan, people like that and it’s very disturbing – Stephen King and other people like that. So I just see this party as anathema to American values. I mean this Trump attempt to circumvent the Constitution; that’s the Constitution of the United States, and it’s really basic. It’s the Article 1 branch…Congress has the ability the right to appropriate funds…the executive can’t just do whatever they want to.
Theo Stamos: “I think a lot of attorneys general are filing suit on that issue.”
BV: But that’s why I think feelings are high. I don’t think “both sides” in any way have gone to extremes. I think one side has. And there’s a lot of social science literature to back that up, that Republicans have lurched to the right. Democrats have moved a little bit, but the society has, like with gay marriage…and I like Medicare for All, today I think that’s like the majority of Americans…if the majority supports something, by definition it’s not being left, it’s center. But anyway, I’m just trying to get your overall…because I hear this over and over again that you’re a Republican. But you say you were for Humphrey, you were for Carter. Have you ever supported a Republican for President, Senate, Congress?
Theo Stamos: “No, I mean, I certainly voted for Democratic nominees in the Democratic primaries. Just look at my Democratic primary voting record. I think my rating in the VAN is something like 89%, check and see where other people are.”
BV: So where does that come from?
Theo Stamos: “I think it’s primarily the Vihstadt thing. I mean, what else would it be? I don’t know. I mean, as I said when I ran in 2011, I grew up as a Democrat on the south side of Chicago…I think it has to be my support as an elected Democrat, understandably upsetting people who feel that that is an apostasy that they won’t tolerate.”
BV: Yeah, I was frustrated with people who endorsed Vihstadt…he’s a Republican, we had a Democratic nominee, and I’m just like you can do whatever you want to do, but then should you get the Democratic nomination again? Should you still be a member in good standing of the party? This has been a big debate in ACDC.
Theo Stamos: “As I think I said in my announcement speech, and I’ve said to other people, sometimes party loyalty asks too much. I can’t speak to other people’s decisions about why they did what they did. But I can tell you that, as I said, John and Mary were not just next-door neighbors. I lost my mother years ago, I was raising two kids, my husband was virtually never home – he was coaching basketball at Georgetown – I mean that man’s schedule was, he was barely home, we laughed about whether he’d done any grocery shopping with me for the first 15 years of our marriage; he was never home. But it was important for me to have someone who was essentially family to me. And I mean John is a good and decent man, and Mary is a wonderful person. They’re civic minded, they’re engaged in the community. And when he asked me to support him, I think he knew what he was asking me to do, but I just wasn’t going to say no, I wasn’t going to be one of those people who say I’ll support you privately but not publicly. I just didn’t want to be like that. I have talked to members of the ACDC who, I’m persona non grata to them now, and some have just written me off, and I respect that. But others have said I understand why you did it. I don’t like it, but I understand it. And that’s all I can ask people to do. I don’t know that I could say any more than I’ve already said…I voted in in the firehouse primaries…go look at my voting record…my number’s way up there compared to others.”
BV: Thanks for your time.
Theo Stamos: “I appreciate the time. I think this is an important race. I know that the voters are going to look at my record and Ms. Tafti’s record and decide. But I think that my record has certainly given me the opportunity to convince people that I’m worthy of another four years. I think that that would be in keeping with the values of this community – protecting our public safety issues, making sure crime victims are heard, and also as I say, being involved in reform that is meaningful to defendants but also making sure that we engage in compassionate accountability. I think that’s important.”
BV: OK, well thanks again!