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Washington Lawyer

How to Become a Prosecutor

From Washington Lawyer, January 2007

By Julie Reynolds

Photo Courtesy Veer.com The glamour often associated with being a prosecutor—the subject of innumerable television and film dramas—has probably done more to attract individuals to the legal profession than any other influence. Prosecutors have the power to initiate criminal investigations, help guide the sentencing of offenders, and are the only attorneys allowed to participate in grand jury proceedings.

In theory anyone with a law license can become a prosecutor. In reality, however, not everyone is cut out for the job. The caseload can be heavy, and the pay is low. Yet prosecutorial work has its rewards in seeing justice carried out on behalf of the people, and in offering a more collegial work environment than many law firms do.

These heightened expectations call for particularly talented, dedicated individuals. Personal qualities in a prosecutor are nearly as important as legal ability. However, desire and enthusiasm can only accomplish so much. How best to prepare oneself for a career as a prosecutor? What are hiring offices looking for in candidates?

Before committing to this career path, it’s advisable to acquire a sound, comprehensive sense of the nature of a prosecutor’s job. This background research includes seeking out and satisfying particular hiring requirements for the desired position. At a minimum, one needs a talent for trial work and as much hands-on experience as possible.

It’s equally important to understand what being a prosecutor is not: not locking up as many people as possible for as long as possible, nor a reflexive, mechanical application of the criminal justice system to wrongdoers. Instead, to be a good prosecutor one must have a sophisticated understanding of people and their motivations and of the needs of the public, as well as the wisdom to determine an appropriate course of action. Being a prosecutor draws upon legal skills as well as one’s capacity for fairness, compassion, and empathy.

How does a prosecutor define success? Former and current prosecuting attorneys agree that the measure of one’s aptitude is not a win–loss record or the number of people receiving lengthy prison sentences. Rather, success is a function of how well a prosecutor furthers the cause of justice—a goal not necessarily synonymous with a high conviction rate. Prosecutors must be sensitive to the needs of the community they represent and consider independently the facts of each situation before deciding to pursue a case at all. This judgment, an appropriate use of prosecutorial discretion, characterizes a truly successful prosecutor.

In fact, according to former federal prosecutor Mark Biros, now a partner at Proskauer Rose LLP, a good prosecutor is not a zealot on behalf of the government. “He or she cannot be ideologically committed to one side or the other. The government is not always right and the defense is not always wrong.”

Current and former practitioners stress that prosecutors must be keenly aware of both their power and their discretion. Deciding whether to prosecute someone accused of a crime, possibly resulting in that person’s loss of liberty, is a grave responsibility. A good prosecutor must have the wisdom and judgment to know when the use of discretion—to seek lesser charges, accept a plea bargain, or avoid bringing the case altogether—best furthers the interest of justice. A punitive attitude does not indicate a mature sense of judgment.

“You should be a person who wants to make sure that the system works,” says Eric Holder Jr., former U.S. attorney for the District of Columbia and deputy attorney general and now a partner at Covington & Burling LLP. “The best people want to make sure that the system works for everybody and that justice is ultimately done. . . . You have to be prepared at times to apply your discretion and say that the better thing in this situation is to bring a lesser charge or, in some instances, to walk away.”

Certain other traits are also shared by successful prosecutors. “Anyone wanting to be a prosecutor must have a strong personal character,” says Carol Elder Bruce, a former assistant U.S. attorney and independent counsel and now a partner at Venable LLP. “You’re given awesome power to decide whether to charge or even whether to investigate a case. . . . It really does behoove a prosecutor to be mindful of the power he or she wields and to always be fair in dealing with the other side.”

Moreover, adds Bruce, “a truly successful prosecutor is respected by the defense bar for being smart, capable, and a great trial lawyer, but someone who is fair in dealing with the defendant and the defense attorney. That includes meeting obligations under the Constitution for sharing evidence in advance of the trial and not sandbagging the defense improperly in argument scenarios.”

Limited employment opportunities can’t be accessed through a mere simple, abstract desire to become a prosecutor. Denise Cheung, an assistant U.S. attorney for the District of Columbia, recommends that interested attorneys or law students investigate the various prosecutorial positions that are available before deciding to apply. “You need to do your due diligence,” she says. “That means talking to people in the office and sitting in on court.”

Most new prosecutors in the United States Attorney’s Office for the District of Columbia begin in either the general misdemeanor section or the appellate section. “What is an average day for an assistant United States attorney in the general misdemeanor section?” Cheung asks. “He or she is pulling a suitcase with all of his or her case jackets; each assistant United States attorney is assigned a few hundred case jackets. He or she will prep some jackets and check the calendar that is posted every morning. Probably six or seven cases are up for trial every day, and they might not have been the cases that person prepped. Then the judge arrives and asks whether the parties are ready for trial.

“It’s chaos,” she says, and “some of it isn’t glamorous.”

What exactly are prosecutors’ offices looking for in new hires? The term prosecutor may be applied to attorneys in different organizations, including the United States Attorney’s Office, the Department of Justice, offices of local district attorneys and state attorneys general, and enforcement components of regulatory agencies. Each office will have its own hiring standards and requirements unique to each slot. For example, a position for a trial attorney for the computer crime and intellectual property section of the Department of Justice’s Criminal Division requires an interest in information technology and computers and prefers individuals with a sophisticated understanding of computers and computer networks.

Some organizations will hire new law graduates under particular circumstances. The Office of the Attorney General for the District of Columbia, for example, has an honors program offering positions to third-year and graduate law students at D.C. law schools and to individuals in D.C. court clerkships at the local or federal level. The Department of Justice also has an honors program, which is the only employment access for entry-level attorneys.

However, most positions require at least a year of postgraduate legal experience. Experienced attorneys are hired by the Department of Justice to positions as they become available, of which most are permanent and have their own unique requirements. Many positions also require the satisfactory completion of a background investigation and drug test. Additionally, applicants must make a commitment to the office if hired—generally two or three years.

Trial experience of any kind will assist immeasurably in acquiring the skills necessary to be a successful prosecutor, whether through a judicial clerkship, participation in a law school clinical program, working for a government agency, or being an associate at a law firm. Indeed, many prosecutorial positions require that applicants have at least a few years of legal practice before they can even be considered.

Litigation skills and a keen appetite for trial work can make a job application stand out. Associates in a corporate law firm, however, may have difficulty getting that kind of experience. Biros recommends taking advantage of every opportunity to improve one’s abilities and show an interest in the justice system.

“Get some practical experience before you make the application to a U.S. attorney’s office or a district attorney’s office,” he says. “For example, if you’re working at a large firm, there may be organizations or activities in which you can get involved that demonstrate your commitment to law enforcement. Do some of those things, pro bono and otherwise.”

“If you’re at a firm, try to get involved to the extent that you can in activities that might take you to court or at least give you an opportunity to take some depositions,” says Holder. “But it need not necessarily be in the criminal context. If you’re doing civil work that is litigation related, I think those skills are fungible. . . . The reality is that if you are a good litigator on the civil side, you can be a good litigator on the criminal side.”

Michael Horowitz, previously chief of staff in the Criminal Division of the Department of Justice and assistant U.S. attorney for the Southern District of New York and now a litigation partner at Cadwalader, Wickersham & Taft LLP, agrees. “You need to have a strong résumé and strong credentials. But among the most important factors is whether the applicant has the experience, the maturity, the judgment, and the ability to go alone into court and exercise good judgment on behalf of the government of the United States and the office.”

Mary Spearing, the former chief of the litigation section of the Criminal Division of the Department of Justice and now a litigation partner with Baker Botts L.L.P., adds that this experience can make the difference in whether one is hired. “The optimum candidate is someone who already has trial experience,” she says. Hiring committees favor individuals who can enter the position “and can handle their cases.”

Trial experience is essential because the prosecutor’s job involves a considerable amount of courtroom work. Prosecutors are given significant responsibility over their caseload very quickly after assuming the job. Following an initial training period, frequently only one trial counsel is assigned to a case. If not already comfortable performing in the courtroom, one should become acclimated to it as quickly as possible.

“If you’re adverse to trial work,” says David Rubenstein, deputy attorney general for the District of Columbia, “this isn’t the job for you.”

Biros agrees, pointing out the demands placed upon lead prosecutors. “You really have to like doing stand-up courtroom work,” he says. “If you don’t like that kind of performance pressure, then you’ll learn quickly that the courtroom is not for you.”

Prosecutors must remain mindful of the burden to make their case. The presentation of solid evidence and testimony are paramount, balancing extensive preparation with the flexibility to address any surprises. Prosecutors must also remember that their responsibility lies in adequately explaining the evidence to the jury. However tempting it might be to blame jurors for not understanding the evidence, the fact that they didn’t understand can only be attributed to the prosecutor’s failure to make it clear.

The best way to overcome insecurity and build confidence in the courtroom, practitioners agree, is to prepare one’s case thoroughly and master the subject matter. “The best criminal lawyers make it look easy . . . because they worked so hard before they got to court,” Holder points out.

Moreover, attorneys accustomed to being only one of many associates assigned to a case must be able to adjust to the unexpected changes attending courtroom work. Of course, preparation and organization are essential, but they must be tempered by an ability to think on one’s feet. The sense of control over paper-based legal work simply isn’t there.

“People first starting out are used to being in control and organized,” says Cheung. “So, opening up a jacket that you’ve never seen before, sometimes not being able to see your witnesses before trial and being able to prepare them, or only have five minutes and then putting them on the stand—which I’ve done—means letting go of that need for constant organization.”

Developing into a skilled attorney in any specialization requires considerable hard work. Attorneys aspiring to become prosecutors must also contend with challenges unique to that role. Although private practice, judicial clerkship, or other government representation can help hone the skills that a good prosecutor needs, the actual experience is a significant departure from those fields.

Fundamentally, prosecutors must be gifted lawyers. They must have the technical skills of an agile, well-rounded trial attorney. Conducting interrogations, taking evidence and depositions, analyzing and synthesizing information, arguing motions before the judge, and putting together a strong case with a firm evidentiary foundation are all essential. Keen attention to detail, particularly in fact-driven criminal cases, is also important.

However, just being a talented practitioner won’t ensure one’s success as a prosecutor. A well-rounded approach to life and the law and an understanding of the community one serves helps prosecutors develop that sound judgment and wisdom upon which appropriate use of their power rests.

“You’ve got to have more than book knowledge,” says Holder. “You’ve got to really have a sense of how people live and what are stressors in their lives.”

Particularly at the outset of one’s prosecutorial career, when adjusting to the work schedule, one must be prepared to put in the effort and long hours needed to manage a heavy caseload. The work can be physically and emotionally draining.

“I think you need a certain amount of energy,” says Cheung. “This job is hard.”

Likewise, says Cheung, “You need to be a people person.” The business of prosecuting is all about people, and a successful prosecutor must be able to communicate effectively with individuals from all walks of life, whether witnesses, victims, defendants, or law enforcement officials.

Interacting with the victims of crime and their loved ones can be harrowing but worthwhile. “In some ways—this is going to sound a little strange—that’s the easiest part of the job,” says Holder. “Once you see the impact of crime on the victims, or those who are close to the victims, you really understand why your job is so important.”

A prosecutor’s passion for justice fuels his or her work, but should not interfere with a professional demeanor. Empathy and compassion for crime victims is always appropriate. However, victims should not come away with the impression that the prosecutor is representing them specifically or that their needs will dictate case strategy. Ultimately, the prosecutor represents the United States or the entire people of a district. Crime victims are only one component of that body.

Maintaining solid relationships with law enforcement personnel is also important for building a case, pursuing investigations, and understanding the evidence. Attorneys must respect law enforcement’s work, perspectives, and insights into developing the evidence and building a strong case. A police detective’s command of a case’s minutiae can be essential to development and preparation. “I don’t think it’s ever appropriate to treat law enforcement officers with anything other than great respect,” says Bruce.

Rosamund Holder, an assistant attorney general for the District of Columbia, agrees. “One thing you always have to do is show other people that you understand their roles in the disposition of the case. Be cordial to your colleagues, because everybody’s bringing something to the table. . . . Acknowledge their roles, but help them to understand your perspective. . . . I think it’s being able to defer to others in their roles and responsibilities, and respecting them.”

“It’s also helpful to be as candid as possible with those constituents,” says Biros, “because they all understand the system and bring to the table a good balance of everybody’s interests, while keeping in mind that the goal is to try the case well and vigorously on behalf of the state or the federal government.”

Open, frank communication strengthened by mutual respect will help the prosecutor make the most of those relationships and enhance his or her work with colleagues toward a common goal.

Interaction with witnesses can be frustrating. However, a prosecutor’s empathy for those individuals and willingness to make them comfortable will help make that relationship productive.

“Honestly, I don’t think anybody would ever want to be a witness to particularly a violent crime case,” says Cheung. “There aren’t people standing in line wanting to do that. It’s a horrible thing to be a witness. Sometimes witnesses are asked to testify against their friends or family members.”

People should not be treated as a means to the end of obtaining a conviction. Recognizing the humanity of all the system’s participants, including the defendant, will make a prosecutor more effective.

Solid working relationships with fellow prosecutors also increase one’s effectiveness. A good prosecutor takes advantage of the expertise of others, particularly peers and more senior colleagues, when unsure how to proceed on his or her own. Experts should be relied on to make the facts clear, so that the prosecutor in turn can elucidate the facts to a jury.

“I think the mark of true confidence in any lawyer is not be afraid to ask what you think might be a stupid question,” says Bruce. “Be willing to do that and not act like you know everything. The more you’re willing to acknowledge that and to get help, the more likely you are to be successful.”

Attorneys making a lateral move from the private sector to prosecutorial jobs may find that limited government budgets produce comparatively Spartan working conditions, including reductions in levels of support staff.

“You’re going to be typing your own material,” says Horowitz. “There’s not going to be a lot of secretarial support or paralegal support. You’re going to be expected to do your own research, do your own writing, and in most instances do your own photocopying. You’re the one who’s going to be doing that from start to finish.”

Particularly at the outset, a new prosecutor can expect a far greater caseload than in private practice. Part of managing that caseload may include arranging plea bargain agreements with defendants. Experience and judgment will help guide a prosecutor to determine when a plea agreement is appropriate and what sentence should be agreed upon.

“For the simple ones where there’s really no victim, you think, ‘How do I dispose of this case and get a plea that’s appropriate,’” says Eric Holder. “However, there are other cases where there are real, tangible wrongs being done to people. In those cases you decide that there can’t be any serious compromise and you must try that case.”

Part of determining the appropriate sentence, either in trial or through plea agreements, is seeking a level of uniformity in sentencing. Horowitz urges prosecutors to avoid extremes in sentencing and plea bargaining. Seeking the highest possible length of jail time is not always the best course.

Likewise, when the facts of the case and the defendant’s history call for a stronger punishment, leniency should be avoided. Sentencing, says Horowitz, is a “momentous event in the criminal justice system.”

As a line prosecutor, Cheung reflects upon the seriousness of the prosecutor’s responsibility for sentencing. “It’s a terrible thing to take someone’s liberty away,” she says. “You shouldn’t do that lightly. I think that’s important for prosecutors to realize this is somebody’s life. . . . I don’t think we should gloat over somebody going to jail.”

In the Trenches
Apart from the potentially daunting caseload, prosecutors must also face the possibility of burnout. When human suffering is part of the job, one can become jaded, even cynical.

“It’s not an easy thing, especially if you’re doing violent crime cases, to do them over a number of years, even drug cases that don’t seem to have victims,” says Eric Holder. “There’s only so much that the human psyche can take before those experiences start to change you.”

However, for all of the effort, late nights, and stress that may come with working as a prosecutor, the compensation is immense, though perhaps not financially. The hard-working, fast-paced environment has its rewards, including the satisfaction of bringing justice to ordinary people.

It also offers a sense of community unrivaled in the practice of law. The bond one comes to share with colleagues makes a prosecutor’s office one of the best places for a lawyer to work.

“There’s a camaraderie that you won’t find elsewhere in all your years of practice,” says Bruce.

“You really do have a sense of awesome power, and you want to use it properly. You’ve been entrusted with it, and you want to use it correctly. It’s a really terrific experience.”

Holder, who has spent the majority of his career as a prosecutor, agrees. “My years as a prosecutor and as a supervisor of prosecutors were probably the happiest times in my career. The work I did there is probably what I’m most proud of. It’s an experience of being in the trenches: you don’t have the resources, you have too many cases, but you have this notion that we all got through this together.”

Cheung fondly recalls her time as a new assistant U.S. attorney. “When everyone comes back to the office after being in court all day, we all trade war stories. There’s this great sense of collegiality, which really helps. You feel as though you’re in the trench together, which builds up camaraderie in the end. It can be a lot of fun, too.”

Rubenstein also has no regrets. “It takes a high level of dedication,” he says, “but it’s exciting and it’s great work.”

Julie Reynolds is a staff writer for the D.C. Bar.