Attack ads in District Attorney’s race anger staff, former DA

As the race to replace David as elected district attorney in Pender and New Hanover County goes negative, an office that has long been insulated from outside politics is now on uncertain ground.

Two decades under Ben David

After winning hard-fought primary and general election races in 2004, David was never again challenged, running unopposed five times. That helped spare his office from upheavals of political and personal alliances and supported a culture where many prosecutors – including Zimmer Donaldson and Smith – have said the role of district attorney is not political in the way that the school board, county commissioners, or state legislators are.

David, a Democrat, frequently pointed out that his twin brother, Jon, is the Republican district attorney for conservative-leaning Bladen, Brunswick, and Columbus counties. And yet, David says, the two see the job very similarly.

But this year’s unusual election is calling into question whether the district attorney’s office can stay above the partisan fray.

Late last year, David announced he would be retiring. The purposeful timing precluded a long-term interim appointment, which David said he wanted to avoid. It also prevented a primary election, leaving the Democratic and Republican parties to each nominate a candidate with a somewhat abbreviated timetable to run their campaign. Initially, both candidates mostly took the high road in public interviews, touting their experience, praising David’s leadership, and suggesting only minor tweaks to the office where they both currently work.

Then, on September 3, Democratic Governor Roy Cooper appointed Zimmer Donaldson as interim district attorney to preside over the office until after the election. David had recommended Barrett Temple, his first assistant district attorney, who he said had “no political ambitions.”

Around that time, Zimmer Donaldson’s campaign sent around a survey, polling for potentially negative feedback to some of Smith’s cases; it’s a common election strategy, but it rankled David and several other prosecutors, who said they saw it as a harbinger of a negative campaign. A few weeks later, on September 19, the domain www.JasonSmithfacts.com was registered, where Zimmer Donaldson’s campaign would later post the substance of attack ads against Smith.

The website and ads provoked pushback from Smith, and David — who said the candidates had agreed earlier in April not to go negative. Zimmer Donaldson said that agreement followed negative comments made by Smith, who disparaged her experience at a GOP event in March.

The ads also caused at least 14 of the office’s 21 prosecutors to call for the ads to be taken down; those prosecutors are caught in the middle between Smith, a longtime colleague, and Zimmer Donaldson, who is now their boss until the election.

Zimmer Donaldson’s ads

In television ads and a website, Zimmer Donaldson’s campaign draws attention to two cases prosecuted by Smith: one for a “child pornographer” and another for a “sexual predator.”

As the attack-ad site notes, the predator was an undocumented migrant from Honduras who raped a 13-year-old girl. The fact that the perpetrator is an undocumented migrant is a true, but inflammatory detail of the story – particularly given the heightened and, at times, blatantly racist rhetoric about immigration being used by former President Donald Trump.

Asked if it was an intentional choice to include a case featuring a defendant who was in the country illegally, a spokesperson for Zimmer Donaldson’s campaign wrote, “We are only allowed to share publicly available information about criminal cases. Therefore, the description of the defendant was taken directly from the originally published news article. We believe this case, along with others, demonstrates a fact pattern of my opponent being soft on crime.”

In a plea deal, Edis Donaldo Maldonado-Ortez was sentenced to 16-29 months in jail. The Alford plea allowed Madaonado-Ortez to avoid technically admitting guilt, while acknowledging there was enough evidence to convict him on the charges. A conviction for a more serious crime, like first-degree statutory rape of a child, would likely have resulted in a much longer sentence.

A TV ad released by Zimmer Donaldson’s campaign presented a blunt version of the case.

“Jason Smith is soft on crime. The evidence is clear: an undocumented immigrant charged with raping a 13-year-old girl. Even though he already had a criminal record, Smith let him off easy. Smith put the sex offender back on our streets before his victim even graduated high school. Now the predator’s whereabouts are unknown. Jason Smith puts our families at risk. Rebecca Zimmer Donaldson will keep violent criminals in jail to protect our families,” the ad’s narrator said.

Maldonado-Ortez was required to register as a sex offender for 30 years, but he failed to do so. He was last documented as being homeless in Pender County; the Pender County Sheriff’s Office was not aware of his location. There was a federal ICE warrant (or ‘hold’) out for Maldonado-Ortez prior to his arrest, although it’s not clear if he’s been deported. Local authorities have no control over if and when ICE acts on a hold, and don’t often notify local authorities when they plan to do so.

Partisan escalation

In an interview with WHQR, Smith said he was “disappointed” that the race had turned negative — despite both candidates having assured David during an April meeting that they would keep the race positive.

“[David] said, ‘You guys don’t have to go negative. Don’t mischaracterize the other person. Don’t mislead the public on things, and if you do, I will come off the bench,” Smith said.

Zimmer Donaldson claimed the meeting came after David “became aware that Jason made disparaging remarks about me at a campaign event,” noting that this “rhetoric has continued.”

She’s apparently referring at least in part to comments Smith made at the New Hanover County GOP convention in March. In a video acquired by WHQR, Smith references the “deep pockets” of his opponent, a member of the wealthy and well-established Zimmer family; as reported by The Assembly month, Zimmer Donaldson has raised over $300,000, Smith said he’s raised close to $87,000.

He suggested that Zimmer Donaldson was unable to “stand up on their own two feet” and needed “help in a courtroom.”

He also added a partisan level of critique, saying, “Ben [David] has been a moderate, I don’t know if this one’s going to be a moderate, I don’t know if [Attorney General] Josh Stein or [Gov.] Cooper are going to say, ‘The only way we’ll support you is if you go far left.’”

WHQR contacted David, who confirmed the April meeting took place with Smith and Zimmer Donaldson. He said he was aware of the video in question before calling the meeting, and that he was “initially concerned that [Smith] was questioning her competence,” but “I did not direct my comments to him more than her,” admonishing them equally to avoid a negative campaign.

In response to Smith’s criticisms, David confirmed that while Smith did have more experience in the office (by about 10 years), Zimmer Donaldson had taken on more responsibility recently. He said he had endorsed both candidates equally, by hiring them and giving them important roles in his office.

At the same time, David echoed Smith’s disappointment with the recent attack ad campaign. He said that while Smith’s partisan attacks motivated his April meeting with the candidates, Zimmer Donaldson’s attack ads were even more concerning because he felt they impugned the office in general, and his tenure as district attorney.

“You’re going to invite me into the race to correct the record, and I don’t think you want that, because I am not going to pull punches defending the work of the men and women of this office,” David said he told Smith and Zimmer Donaldson. “That’s why I hope they focus on their individual accomplishments, rather than creating these false narratives.”

Zimmer Donaldson defended her ads, saying they provided important information.

“Our goal is to ensure that the public can make an informed decision about who is best suited to serve as District Attorney,” she said in a written response. She noted, correctly, that Smith has touted his experience as the “mini-DA” in Pender County, and argued he should be accountable for the track record there.

“Jason Smith cannot claim credit for being in charge while also avoiding responsibility for the decisions made under his watch,” she wrote. “Which one is it?”

Zimmer Donaldson side-stepped the question of whether she was criticizing her former boss, who she had heaped praise on in earlier interviews.

“Ben David is not a candidate on the ballot this November—Jason Smith is,” she wrote.

The public record

Zimmer Donaldson’s ads rely on the public record and reporting from local news outlets. But Smith and David both noted that the ads left out a lot of material that’s not available to the public. Those could include Fourth Amendment, Miranda, or Giglio issues during the investigation. An “even more common” issue is a lack of cooperation from witnesses, David said.

That’s often an issue in murder and violent assault cases when witnesses feel — or actually have been — threatened to keep quiet. And with sexual violence, especially against children, it’s an even more delicate, nuanced situation.

Smith said he’s spent much of his prosecutorial career dealing with these cases.

“We have to look at what happens if we put that child on the stand and make her testify against her abuser. What does it do? Does it traumatize her worse? What happens when we put a child on [the stand] and the jury doesn’t believe them?” Smith said of these cases in general. “Do we force a child to go and testify when she or he doesn’t want to?”

Smith and David didn’t discuss the details of the sexual assault case Zimmer Donaldson cited — and that’s part of their objection. The details matter, but they’re not always public. And, even when legal confidentiality isn’t at issue, conversations with victims are often considered very personal.

Smith also pushed back on the framing of plea deals in general, saying many are the prosecutors’ best chance at getting prison time for a defendant they believe is guilty.

“People look at plea deals as negatives and that I’m sure that’s why some of these ads are being used against me,” Smith said, noting that over 90% of cases are not tried, many resolved through plea deals.

David was more pointed.

“To say that a case gets resolved because someone is going light on crime when it was really getting resolved because of these much more nuanced factors, creates a false narrative, and quite frankly, it’s beneath the dignity of this office,” he said.

Staff morale

David reiterated that he felt Zimmer Donaldson’s ads were “an attack on the whole office, and not just on Jason Smith,” and that her new role as interim district attorney could squash dissent, not just from Smith but from other prosecutors.

“When you create a power dynamic where you know one opponent is running against another, but has to work for them at the same time, it obviously creates an unfair impression for them to maybe not be able to say what’s going on,” he said.

David doesn’t have to pull his punches because he’s no longer running the district attorney’s office. Smith not only still works there, but now reports to Zimmer Donaldson, who is openly criticizing his past performance. Zimmer Donaldson didn’t directly answer a question about whether she had any concerns about Smith’s continued role in the office she now runs.

Still, for an office that has long operated under the time-honored institutional maxim of praising in public and criticizing in private, this is a jarring change. Asked about getting slagged by his boss, Smith demurred. But many employees have raised the issue.

In a signed petition, 14 assistant district attorneys, over half of the office’s staff of prosecutors, “respectfully ask that the negative ads targeted at our office and at Assistant District Attorney Jason Smith be removed.”

The petition, verified by WHQR, disputes the ads’ “misleading references,” calling them “unfair and untrue,” and voices frustration that the campaign has gone negative.

“We don’t believe that attempts to damage [Smith’s] reputation as a person or a prosecutor have any place in this race. At the outset, we were led to believe that both campaigns would run on the strengths of each candidate for the job rather than resorting to mistruths and mudslinging. Unfortunately, that has not held true, “the petition states.

The petition also indicates the prosecutors take the ads personally.

“The negative ads are direct attacks on the competence of each and every member of our team,” it states in part. “False attacks on individuals in our office only serve to wrongfully damage that trust and the reputation of us all.”

And, the petition asks “both campaigns adhere to their initial promises of running on the candidates’ abilities instead of publicly smearing each other.”

Zimmer Donaldson confirmed she’d seen the petition, but said it wouldn’t play a role in her campaign decisions.

“While I have the utmost respect for our prosecutors and staff, campaign decisions are for the campaign, not for the office,” she wrote.

A spokesperson for her campaign said there was another round of commercials planned “to ensure voters are well-informed when casting their vote for District Attorney.”