So You Want to Be a Prosecutor? The Bad
Constant Conflict
Very few human beings are wired for constant conflict. They are the exception, not the rule. Most people avoid conflict whenever possible. Some go so far as to take personal losses to their finances, emotions, dignity to give even the possibility of dissension a wide berth. It is deeply ingrained in human nature to go along to get along. Trial work puts that intrinsic human quality to the test, early and often. Very few have the stomach to pass that test occasionally. Almost no one has the intestinal fortitude to pass that test on a daily basis. I was once told by an attorney I respected and admired that he had never really met an attorney who was truly happy with his or her place in life. Looking back, I can say without hesitation that I haven’t either. I suspect the constant conflict grinds any fleeting happiness into long forgotten oblivion.
From the jump, trial work is a bare-knuckle prize fight. There is almost no common ground to be had from start to finish. The more you progress in your career and the more serious the cases you handle the truer this becomes. Discovery is a contest of what has to be disclosed and what can be concealed within the bounds of the law. Evidentiary hearings often become mini trials – ones that frequently have the potential to determine conviction or acquittal because the end result is dispositive of what evidence comes in and what evidence is suppressed. Consequently, many evidentiary hearings are fought to the death. Pre-trial motions are also effectively the same thing. All of this is a preamble for what comes next. All of it a microcosm of a forthcoming no holds barred fight where the stakes, more often than not, could not possibly be higher for both the victim and the defendant.
Imagine for a moment that a bully in high school told you during homeroom that at 3:00 pm you and he would fight in the parking lot of the school. You would no doubt suffer all day long with an ulcerous pit at the center of your stomach regardless of your fighting ability. Your confidence level in the outcome would be largely irrelevant to the question of whether or not you actually want to be in the fight to begin with. Additionally, imagine that the outcome of the fight has real life consequences, not just for you and your career trajectory, but also in the realm of justice and public safety. The pressures of criminal trial work are immense.
If you’re the type of person that wakes up itching for a fight and you thrive when the stakes could not be higher, then being a prosecutor may be your bag. But you’ve got to be wired for constant conflict. This is not something you have to have the ability to merely tolerate. You have to want to engage in it. You have to excel under immense pressure. You have to be the type of person that gets their kicks and giggles from arguing all the time. Very few people fit this mold. Based on my experience, almost nobody does.
The Results are Not Always Linear Because Jurors are Not Always Rational
We are all wired to expect certain outcomes given specific inputs. In fact, this is what we have all been taught from a very young age. Hard work equals success. Right always wins. Justice always prevails. Not so. You can work really hard as a prosecutor. You can prepare the perfect case with overwhelming evidence to convict. You can do everything right and still lose. Why? Because justice is predicated on twelve total strangers agreeing on something unanimously while being circumscribed during their deliberations by the highest burden of proof – beyond a reasonable doubt.
Have you ever tried to get a group of total strangers to come together and agree unanimously on any one thing? This is a herculean task. This is made infinitely harder by the fact that jurors can be so irrational and unreasonable. For every jury pool, there will invariably be a certain percentage of nut cases. For every jury selected, you will always have one or two East German judges. This is inevitable. There is no way you can select a hundred or more people at random and learn enough about their proclivities to make an informed decision about them in the few minutes you get to probe them individually during voir dire.
During voir dire once, I asked a lady in the front row, “Do you think you can be impartial and fair during this trial?” To which she replied, “Yes.” Then this lady winked at me. To this day, I have no idea what that meant. Was she signaling to me that she was going to vote guilty no matter what “so don’t worry about a thing baby?” Or was she physically attracted to me? I had no way of knowing. I kept her on the jury, but that was a complete shot in the dark.
Additionally, it is a not so well-kept secret within the legal profession that jury trials hinge mostly on the facts of the case, but not entirely on the facts of the case. This should disturb everyone, but strangely this is just an accepted fact amongst lawyers. Juries are notoriously prone to making important decisions based upon the inanest of details. An attorney’s wardrobe, personality, looks can mean the difference between a conviction and an acquittal. This sounds strange even perverse to the uninitiated, but it is undeniably true. Attorneys that jurors like are the attorneys that jurors trust. Believe it or not, justice often hangs on what is nothing more than a popularity contest. Jury trials often devolve into high school elections for class president. Such is the bane of American jurisprudence.
Moreover, if you ever want proof that jurors can be totally irrational, take a look some time at the questions that come out of the jury deliberation room. Some of the questions I have seen in my time seriously made me question whether or not the bailiff actually retrieved the right question from the right jury. As a prosecutor, you just spent an entire trial trying desperately to get the jury to keep their collective eyes on the ball, only to find out that they had spent the last few days or weeks completely ignoring you. To your utter dismay you realize that you have a jury not just swinging at pitches out of the zone, but wildly flailing at pitches in the dirt. This can be exceedingly frustrating.
The bottom line is that, as a prosecutor, you can work really hard, you can prepare the perfect case, you can have all the evidence in the world and still not get the expected result. If the OJ Simpson verdict bothers you to no end, then being a prosecutor is just not for you.
Obtaining a Conviction is Always Challenging
It is always difficult to build something from the ground up. The more fragile the building material, the more difficult the task. As a prosecutor, you are building a case that must meet the most exacting of specifications and you’re being tasked to do it in real time, in front of a group of twelve people evaluating every detail along the way, while a defense attorney is ever probing, trying desperately to break one building block at a time so the entire edifice crumbles.
What makes this task infinitely more difficult is the fact that your building material is not always of the best quality and, even when it is, the quality of the material inevitably erodes with time. As a prosecutor, you can head into trial with what you believe to be solid evidence only to later discover that the quality was dubious at best because it had never been subjected to heat and never truly exposed to pressure.
I have had many witnesses crumble during cross examination. They did fine in my office when it was just me and them, but now in front of a judge and a jury, all of a sudden, they get stage fright. They start admitting things that are either untrue or irrelevant or they display an animosity or a defensive hostility at being cross-examined, all of which ultimately makes them utterly distasteful or entirely untrustworthy to the jury. I had a case once where my star witness was so hostile during cross examination, so miffed at having someone question their integrity that even I hated him in the end.
Additionally, police officers can torpedo cases during cross examination. This is to be expected as police officers are training on the job and unfortunately things will be missed, mistakes will be made. You will have cases where a police officer did not secure the proper chain of custody on a key piece of evidence, and you had no idea until he was subjected to cross examination because the police report made it appear as though all the proper precautions were adhered to. You will have cases where a police officer did not give proper Miranda warnings and the defendant’s admission is thrown out as a result. You will know none of this of course because in the police report you read, “I Mirandized the suspect.” You will have many cases where a police officer violated a defendant’s Fourth Amendment rights and incriminating evidence is subsequently suppressed, but none of this was disclosed in the police report or in any of your conversations with the officer because nobody wants to admit to the prosecutor that they might have messed up.
And when you encounter these things during trial it is hard not to panic, but panic you must not. Your case may now be crumbling, and you may have to frantically fill in the gaps and reinforce the structure, but you have to pretend that you knew this was going to happen. Juries can smell blood in the water, so panic is the last thing you want to show.
Moreover, even when everything goes right, a conviction is never a foregone conclusion. All you need is one dingbat on your jury and it’s hung. And if that dingbat happens to be charismatic and persuasive, then what you thought was a sure conviction becomes an unanticipated acquittal. The vagaries of a jury system make trial work immensely difficult, and convictions are never givens no matter the scenario.
The Pressure is Immense
More than your career trajectory hangs in the balance with every verdict. With most jobs, career trajectory is pressure enough. As a prosecutor, not only will an acquittal damage your career prospects and potentially denude you of the confidence to continue, but it will also require you to look a victim in the eye and apologize for an injustice done to them that you failed to rectify. That is unbelievably hard. They have now been victimized twice – once by the defendant and a second time by the justice system and as much as you try to comfort yourself in the knowledge that you had nothing to do with the former, your essential participation in the latter makes it exceedingly difficult to do so, because it is almost impossible not to conflate the two.
Imagine you’re a prize fighter. You have to train for an upcoming fight after which you have to actually get into the ring with another prize fighter who will do whatever it takes to win, even if that means bending or breaking the rules. Leading up to the fight you have to also book the venue, buy all of the equipment required to fight (gloves, cup, shoes, tape, etc.) and still find time to scout your opponent and train to their strengths with an eye to exploiting their weaknesses. On fight night you have to perform in front of witnesses and the outcome, barring a knockout, is entirely in the hands of three judges evaluating your performance in real time. The outcome of the fight determines your next fight and the size of its purse while at the same time it either bolsters or crushes your self-confidence and the confidence that others have in your abilities. The outcome is deeply personal, and you are being evaluated by all in attendance and their opinions are not calibrated to your performance, but by an outcome largely outside of your control. As if that were not enough, in the front row are seated individuals who live and die with the outcome. For them, the outcome is more than just personal vanity, it is personal to the extent that it alters their lives in deep and profound ways. At the end of the day, you fight for them. Failure is therefore not an option even though it is an ever-present probability.