Chapter 20

• Jurisdiction: United States

Chapter 20 Prosecutor Education

On-the-Job Training—The Early Years

My early education as a prosecutor took place in the offices and courtrooms on Third and James. For example, I sat with Jack Cunningham in his office on the fifth floor as he showed me how to read a prosecutor's legal-size file. On the left side were blue sheets where a deputy prosecutor could enter chronological notes about what had taken place in the case and observations that would help other prosecutors who picked up the file. The left side of the file normally contained confidential work product that was not discoverable. On the right side was a police report with a cover sheet listing witnesses and a summary of the case, a follow-up report by the detective, witness statements, lab reports, and so on.

Soon after joining the office, you would be sent off to try cases on your own. You were just tossed in, and you would either sink or swim. Also, to learn how to try a case, you would second chair a case with a more experienced deputy like Jack Cunningham or Jim Miller. As the second chair, I could watch the more experienced prosecutor do trial work and present part of the case myself. It was almost exclusively on-the-job training.

The almost exclusive sink-or-swim approach to training prosecutors was no way to teach prosecutors how to conduct themselves. It was not as if new deputy prosecutors came into the office with the requisite skills that they had gained in law school. Pretrial and trial advocacy courses were not common law school courses at the time. My law school had none. New deputy prosecutors entered the criminal justice system with little if any training in advocacy skills and professionalism. While law schools did require that students take a course in ethics, the curriculum was not devoted to training future prosecutors about their special professional responsibilities. At that time, new deputy prosecutors did not attend any formal continuing legal education courses for prosecutors at the national, state, or prosecutor office level.

No accepted national, state, or local publications were available that explained how to perform as a prosecutor. The King County Prosecutor's Office under Prosecutor Charles O. Carroll did have an office manual with case law summaries and other valuable information, but when Chris Bayley defeated Carroll, those manuals were collected and destroyed before Bayley took office. Well, almost all were destroyed; mine just happened to be overlooked. I still have it.

At that time, there was no compelling reason to educate prosecutors. Why would time and money be devoted to educating new deputy prosecutors to be skilled and ethical prosecutors when they would only be with the office for a couple of years? Because of the lack of prosecutor education back then, we moved from case to case but lacked a tradition of prosecutorial professionalism and a culture that called on each of us to want to make a difference in the criminal justice system.

National College of District Attorneys 1979-1981

The National College of District Attorneys was established to fill the need for prosecutor education and thereby improve the criminal justice system. The college was founded in 1969, the same year that I graduated from law school. Just two years earlier a presidential commission had concluded that the training of prosecuting attorneys was usually limited to law school education and "whatever courtroom experience he [or she] had had." The commission went on to recommend that curricula and programs be developed for the preservice and in-service training of prosecutors. The commission noted that very little specific preparation for becoming a prosecutor was included in law school education. The commission report stated that the National District Attorneys Association's (not to be confused with the National College of District Attorneys) training efforts consisted of a few seminars around the country in cooperation with local district attorneys' offices. On the other hand, the commission observed by contrast that a national organization existed to train judges—the National Judicial College, located in Reno, Nevada.

Based on the commission's recommendation and the experience with the National Judicial College, representatives from the American Bar Association, the American College of Trial Lawyers, and the International Academy of Trial Lawyers came together and discussed the creation of a college for prosecutors. Eventually, the three organizations agreed to sponsor the establishment of the National College of District Attorneys, and it became a reality and a legal entity.

Nancy, the boys, and I moved to Houston in 1979 where I started work as the Director of Training for the National College of District Attorneys (NCDA). My motivations at the time, as previously mentioned, were that I had reached a point in my career that it was time to move on and that I believed in the mission of the college to educate prosecutors and thereby make a difference in their job performance and in the criminal justice system.

We were in Houston from 1979 to 1981. The college was housed in the basement of the University of Houston Law School Center. The National Defense College was also located in the center but in a different part of the building. During the time that I worked for NCDA, my job entailed designing, organizing, and conducting continuing legal education courses for prosecutors throughout the nation. The college's approach to educating prosecutors was a far cry from the "sink-or-swim" methodology I had experienced.

The planning part of my job involved mapping out a budget, an agenda, and a proposed faculty roster for what normally was a week-long course. The college offered different subjects, such as trial techniques, evidence, organized crime, management, and so on. Once the course schedule, budget, and faculty had been approved by the Dean, I would line up faculty members (who were not only prosecutors but also superb teachers), compile course materials, and do other course management tasks.

The National College's courses were normally conducted in locales that prosecutors would like to visit—New Orleans; San Francisco; Lake Tahoe; Charleston, South Carolina; Santa Fe, New Mexico; Las Vegas; Park City, Utah, and the like. Because I was the course manager who booked a block of hotel rooms, it was not an uncommon experience for me to be given a suite. Above and beyond these luxuries, I was able to learn from some of the most talented teachers both how to teach and what a good trial lawyer and manager need to know.

Another assignment that I had when I was with the college was to edit the college's publications. This would be something that I would return to doing when I rejoined the college later in my career. This editing responsibility not only served as a good experience learning both how to write and about the subject matter of the books. Also, being an editor permitted me to work with some of the fine prosecutors who were on the NCDA faculty and participate in the creation of books that would educate prosecutors.

For instance, I worked with Assistant U.S. Attorney Robert C. Stewart on his book, Identification and Investigation of Organized Criminal Activity. Bob Stewart was a principal faculty member of the college's organized crime courses that I managed. In fact, he was on the faculty when the college began its series of organized crime courses in 1973. Stewart was a reformer. He, along with the College's Associate Dean Robert Fertitta, learned together about organized crime prosecutions when they worked as assistant state's attorneys in Baltimore, Maryland, in the 1960s.

Stewart dedicated himself to improving how organized...