What's at stake in the Suffolk Country District Attorney's race?

Editor’s note: Following an internal review of his work, GBH News will no longer use Daniel Medwed as an on-air legal analyst. This decision was made following his being referenced in a Department of Justice report on U.S. Attorney Rachael Rollins and subsequent comments he made on air about her tenure and the 2022 Suffolk County D.A. election, without appropriate disclosure. High ethical standards and credibility are central to our work and nothing is more important to us than our audience’s trust.
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The contest for Suffolk County district attorney has taken a tumultuous turn in the weeks leading up to the Sept. 6 primary. Northeastern University law professor and GBH legal analyst Daniel Medwed joined Morning Edition hosts Paris Alston and Jeremy Siegel to discuss the ramifications of the latest events. This transcript has been lightly edited.

Jeremy Siegel: Let's start with what's at stake here. What's so important about the Suffolk DA's race? Why is the job meaningful?

Daniel Medwed: The district attorney for Suffolk County is basically the chief law enforcement officer for the largest county in Massachusetts, the one that encompasses Boston. And in that role, the DA gets to set criminal justice priorities. Which types of cases does the office pursue? Which ones does it decline to prosecute? In an individual case, does it charge it as murder or manslaughter? What about plea bargaining policy? Do they make plea offers in most cases? Some cases? Not at all? It's a very consequential job.

Most crimes are prosecuted at the state level. Your average rape, robbery, murder — that's a state court crime prosecuted by county district attorneys. So if you care about local criminal justice policy, this is the race to watch. Now, usually county DA elections were sleepy affairs. No one paid attention. I saw a study, an academic study from about 15 years ago, that said that 94 percent of the time, the incumbent wins in county DA elections. And in 80 percent of those races, the incumbent runs unopposed. Now, things have changed in the last 10 years. Now these elections are being reviewed much more closely, and I think for good reason.

Paris Alston: You know, Daniel, I think about someone like former Suffolk County DA Rachael Rollins, who really shifted this office during her tenure. And this race would fill the seat that she vacated when President Biden nominated her to become the U.S. attorney for Massachusetts. So for those who don't know, who are we looking at as her potential successor?

Medwed: The race boils down to a contest between Kevin Hayden, who is the interim district attorney who was appointed by Governor Charlie Baker to fill out the remainder of Rachael Rollins's term; and his challenger, Ricardo Arroyo, a Boston city councilor and a former public defender.

In a sense, it's a choice between an established moderate, somewhat moderate — Kevin Hayden, who's a bit of an institutionalist, he's been around for many years in law enforcement circles — against a younger, less experienced progressive, Ricardo Arroyo. At least that's what the race looked like about a month ago before a series of scandals broke that have created a sea change in how I think voters are going to view this.

Siegel: Let's talk a little more about those scandals. News broke recently about how police apparently looked into sexual assault allegations made by two young women against Arroyo back when he was a teenager. This was a story published in The Boston Globe. What's the significance of this news, both for the race and for Arroyo's legal liability?

Medwed: Well, I think it's potentially quite significant, and here's why. On the one hand, it's obviously extremely damaging to Arroyo as a political matter. We all know about the barriers that survivors of sexual violence face in coming forward, how it's one of the most underreported crimes out there. The fact that two young women came forward, albeit years ago, is by itself very troubling. And it might understandably cause some voters to call into question Arroyo's character and fitness for the position and whether he might be put in an untenable position if he has to make a hard call about whether to prosecute a sex crime case or not.

On the other hand, I think it's really notable that these investigations never resulted in arrests, charges or convictions. They were closed. We don't know why. It could have been because the allegations were unfounded or the complaining witnesses had a change of heart. We really don't know why. But we do have a presumption of innocence in this country. I think the real legal issue facing Arroyo is whether he may have been less than forthcoming on his bar application in 2014 when he sought to practice law in Massachusetts and apparently failed to disclose information about these investigations.

Alston: You mentioned his bar application there, Daniel. Could he be at risk of losing his license to practice law as a result of this?

Medwed: It's possible. So here's how it works to become a lawyer in Massachusetts. You not only have to graduate from law school, which can be a rigorous three year course of study, typically after your bachelor's degree, but you also have to take a grueling two-day bar examination, a written exam. I still have PTSD from mine 25 years ago. And on top of that, you are reviewed for what's known as character and fitness by an entity known as the Massachusetts Board of Bar Examiners. And as part of that process, you have to attest in writing to a certain number of things. And one of the questions is this: "Have you ever been charged with or been the subject of any investigation for a felony or misdemeanor other than a minor traffic charge?"

Arroyo apparently answered no to that question and maintains that he was never told that he was under investigation. Now, unlike an arrest or a criminal charge or a conviction, the term investigation is not a term of art. It's very subjective. It's very malleable. You're not usually given formal notice that you're under investigation. So it's plausible. I'm not saying it's necessarily true, but it's plausible that Arroyo didn't know that the questioning of him by the police rose to the level of an investigation. And that remains to be seen, but it's quite possible that the bar will investigate him.

Siegel: Let's quickly turn to Arroyo's opponent here, interim DA Kevin Hayden. You mentioned that there's been controversy surrounding him as well. There's also been allegations that Hayden's office must have played a role in leaking this news surrounding Arroyo. Hayden has denied this. Do you think that's true? Could there be consequences? What should we know on how you're making sense of his end of this?

Medwed: We don't know, right? We don't know how this story came to the attention of The Boston Globe. I think there's no evidence and maybe there never will be evidence that Hayden's camp was involved in leaking this information and starting the ball rolling. The Boston Globe is certainly not going to disclose its sources as a matter of journalistic integrity.

But it does smell a little bit. And I'm not saying this is true, but it feels a little bit like an old-fashioned political hit job, which we've seen over time and time again. Why would 15 year old allegations emerge two weeks before the primary, right after news emerged that Kevin Hayden may have been embroiled in an entirely different scandal involving potentially closing a case against a transit police officer for a gun brandishing incident, a road rage incident? So it feels rather unseemly. I don't think we'll ever get to the bottom of it and whether anyone in his camp was involved.