By Amy M. Eades
Assistant District Attorney in Brazos County
As a young prosecutor, there is nothing more intriguing than the chance to work on a big, exciting, or complicated case.
We want to be in the middle of it all right away. Although it’s unlikely we would be working on a murder in the first few years, there are many ways we can start to work on the skills we need to be successful down the line.
In many ways, COVID-19 has changed the way our offices operate. Many jurisdictions have foregone jury trials during the pandemic, leaving prosecutors without their weekly, bi-weekly, or monthly chance to exercise and strengthen their courtroom skills. Our calendars may still be full of daily tasks and non-jury dockets, but our work life is missing the excitement and challenge that comes with being in jury trial representing the great State of Texas. This is especially true for young prosecutors who rely heavily upon jumping into the well with our more experienced counterparts to develop strong trial muscles.
My office, like many all over this state, is filled with what I like to call subject matter experts. I’m fortunate that if I step into any given workspace, the prosecutor inside has a wealth of knowledge and experience he or she is willing to share. All of them started with a desire to learn and grow, but that desire can’t stand alone—these subject matter experts also had the drive to reach that goal, the gumption to ask for opportunities, the confidence to walk through doors when they opened, and the humility to recognize they didn’t know it all.
While conventional methods of learning and growing aren’t necessarily at our fingertips, there are still many opportunities for the taking. The void in our schedules left by the lack of jury trials has created time and space for prosecutors to challenge themselves and sharpen their trial practices.
I took my own advice when preparing for this article and reached out to some of the human treasure troves in my office to get their suggestions on what a young prosecutor can do to develop skills and knowledge without going to trial, and I have written them out below. Keep in mind that each of the things you choose to spend your time on should have a purpose. The goal is to make intentional choices toward honing your skills that will translate to value at every stage of your career, from Class B misdemeanors to capital murders. Here are some suggestions.
Start with your own caseload
When we are dealing with the fast pace of trial preparation and presentation, it can become difficult to spend the amount of time and effort on our new cases we would like to. One of the unique opportunities we’re presented with is the time to really dive deep into what should be the first priority: our own caseload. While this is a great way to make sure you’re extremely prepared for docket, we can also develop strategies, craft arguments, and identify weak spots in cases. These practices are instrumental in formulating a strong and successful trial plan.
Dig into the details. Take time, for example, to watch every minute of that body camera footage and look for things that could be helpful —or harmful!—to your case. Let’s assume you just received a drug possession case and you anticipate, from the evidence, you may get the classic “not my pants” defense argument (it happens more than one would think!). As you watch the video, you observe the defendant, over the course of the investigation, continually placing his hand inside the pocket where the drugs were later found—that may be something you use to counteract the defense’s argument. Paying attention to the details will pay off.
Even if the cases don’t go to trial, the additional time spent reviewing and analyzing cases will build necessary skills: how to develop strategies, formulate persuasive arguments, and anticipate defense claims. Applying this practice and using the arguments you craft during negotiations may show which are more effective than others. You’ll quickly learn that it pays to be the most prepared person in the room.
Try contested hearings. Another way to weaponize one’s own caseload is to lean into contested hearings before a judge. Contested hearings before the court, which can include probation revocation hearings, bench trials, motions to reduce bond, motions to revoke or increase bond, etc., are a great opportunity to create trial-like scenarios and test your preparation and presentation skills until juries are back in the box. The first few jury trials or hearings a young prosecutor does are kind of a blur—you really are just trying to make sure nothing blows up and that you remember where to stand! These court settings help you understand how things operate and learn what works for you. Always remember to be respectful of the court’s time, of course, but don’t be afraid to use every single opportunity to practice these essential skills—yes, even in a motion to reduce bond hearing!
Each hearing is an opportunity to practice and strengthen core advocacy muscles required for jury trials: witness interviews, witness examination and cross examination, anticipation of defense strategy, caselaw research, and more. While some of these skills are basic, that doesn’t necessarily mean they are simple, and if they’re done correctly, they can be very effective and persuasive. Time spent honing these foundational skills is time well-spent. Remember, the goal is for each part of a presentation to work together and to work toward final argument. You read that right: Closing argument begins to build long before the State rests. In fact, direct and cross examinations should be laying the groundwork for closing argument, and you can begin to compose that argument before ever meeting with a witness.
Craft direct and cross examinations. Take advantage of this extra COVID-era time to dig into crafting direct and cross examinations. This process begins long before you ever sit down to write a question. For example, a meeting with a probation officer on a motion to revoke probation or motion to proceed with adjudication can include more than going through the list of the alleged violations. Before that meeting, read through the hundreds of pages of chronological notes and find the gems hidden there. The notes you take during that review will later be the foundation for your questions for direct examination, which should lay the groundwork for closing argument, before the meeting even begins.
As the meeting is happening, it should be driven by the information you already have in the officer’s reports, but it should also be flexible enough that you don’t miss the additional insights from the live witness. This ability to be purposeful as well as flexible in witness meetings comes with time and experience—start working toward that now, as these hearings require prosecutors to present a thorough and thoughtful case to meet the State’s burden of proof.
Try bench trials. The most jury trial-like scenario of these options is a bench trial. If a case has broken down in negotiations, or if it’s on a jury trial docket already but you are confident that a trial to the bench would result in a just outcome, consider waiving a jury. Preparation for a trial to the court will require most, if not all, of the same work as a jury trial, including interviewing witnesses, preparing direct examinations, anticipating defense strategy, writing cross examinations for defense witnesses, and building a caselaw portfolio by researching specific legal issues.
Build punishment cases. You can also use this time to learn how to build a punishment case. Each prosecutor approaches punishment a little differently, but some examples of such evidence can include juvenile records, jail phone calls, offense reports, photographs from extraneous offenses, witnesses or victims of prior offenses, and evidence from the case at hand. Some cases will have more punishment evidence than others and not all of it is necessarily effective, but the nuance in determining which evidence to present is a skill worth honing.
This practice of building a punishment case—requesting and analyzing records and reports, meeting with witnesses or victims of prior offenses, etc.—will teach you about strategy and witness presentation and will also help you to craft offers and arguments. While not exactly the same as a jury trial, you can also use these hearings to develop your own method of preparation. This is both practical and strategic. Find what works for you and then learn what persuades others.
Volunteer to help other prosecutors
This might be a great time for young prosecutors to venture into other divisions to get some diverse experience. Step into other areas of the office that haven’t stopped—or even slowed down—because of COVID. If your office handles juvenile cases, chances are good that you can help out with a contested hearing any day of the week. Juvenile detention hearings, like miniature writ hearings, are an opportunity to examine witnesses and make arguments, with the added challenge of having to think on your feet a little more quickly than in a bench trial for which you’ve prepared over weeks or months.
You can also reach out to intake or appellate prosecutors. While it may seem counter-intuitive to seek out experience in the processes that happen before and after trial, having an understanding of the intake process, as well as issues that arise in appeals, will be tremendously helpful as you prepare and present a compelling and solid case to a jury. Having the experience of working up a possession of marijuana case to be filed by complaint and information or a possession of controlled substance case to be presented to a grand jury will give you a broad understanding of what work goes into intake, as well as aid you in case evaluation. When you see the next drug possession case come across your desk, you’ll know what work was done to get the case to you, and you’ll be better equipped to evaluate that case for its strengths and weaknesses.
There is also a ton of valuable insight and experience to be gained by writing appeals. Preparing an appellate brief requires reviewing the reporter’s record and becoming familiar with how the trial progressed, giving you insight into every detail of the trial and allowing you to read every direct examination and cross examination, each objection and argument in response, bench conferences, and arguments. Working on appeals allows you to continue to build on your own skills by learning from the successes and mistakes of other prosecutors. This practice also teaches you about legal issues that present themselves before, during, and after trial. You may see these same legal issues in a case down the line. Whether the case presents a legal argument that is very nuanced or one that comes around quite often, having a caselaw portfolio to call upon later is extremely valuable.
Diversifying your experience by reaching out to other divisions is valuable in many ways. Not only will you be actively working to become a better trial attorney, but you are showing your chief and other leaders around the office that you are willing and able to step in and fill other roles within the office.
Be willing to help
One of the very best things about our profession is how willing we are to share our experiences and knowledge with each other. The human treasure troves sitting in the offices around you are great resources—and we should all seek them out!
Experienced prosecutors often have the complex cases that young prosecutors are itching to work on. Maybe you are interested in learning the intricacies of a case involving organized crime and gangs, you have a passion for trying domestic violence cases, or you want to learn how to prepare a capital murder case for trial. These cases probably aren’t landing on your desk just yet, but the chance to learn is likely still there. Complex cases require an extensive amount of work outside of the courtroom, including document review and analysis, caselaw research, discovery review and organization, and much more. Helping with such projects opens the door to new challenges and learning. Don’t be afraid to ask a more seasoned prosecutor if she needs help with these cases. There is a chance that she hasn’t had time to get to some of those more detailed and time-consuming projects.
Some things you work on won’t be something you want to pursue as a career path, but that’s OK. In fact, that’s a good thing! Everything you say yes to—every project, every opportunity—will teach you something. You probably won’t be doing the most exciting work, but the best opportunity to get involved is to seek out those projects that allow access to something you are excited to learn about and work alongside a more experienced prosecutor. Reviewing documents for a capital murder trial has more significance to the case and to your growth than simply knowing how to read PDFs. Each prosecutor has a unique preparation style that has developed over the years. What better way to develop your own prep technique than to observe the different styles of the more experienced prosecutors in your office?
Seeking out these projects will also mean deeper discussions with senior prosecutors. For example, if you are tasked with reviewing a phone dump in a case where there are allegations of gang activity or organized criminal activity, you will likely spend hours going through all of the data pulled from the phone. Sure, you need to know what to look for to be helpful, but you should take the time to ask why that information is important or pertinent to the case. Don’t miss the chance to learn something beyond the task. Most likely, you will collect quite a bit of information while reviewing the data, and it may be fine to just type it out in a bulleted list. But here is another opportunity to create value from this task: Talk with the senior prosecutor about how he might use this information during trial and how he wants the information documented or saved. Not only will such a query start a conversation about trial strategy with the more experienced prosecutor, but you will probably also get some insight into this colleague’s preparation style.
These opportunities might not be as readily available as we would like, but showing that you can take initiative and make yourself available goes a long way; it may even put you at the top of the list for the next project. If you continue to make a purposeful choice to be available and willing to learn, the right door will open.
Before I began writing this article, a coworker and friend asked what I did in 2020 that makes me the proudest. I had to think about it. Any other year, I would have found a moment from trial to call on—a challenging cross-examination that went well or maybe a clever line from a closing argument—but last year was different. The year 2020 and COVID forced me to get creative in finding opportunities for growth. As much as I miss having a jury in the box, I’m proud to say that I challenged myself by stepping outside of what I believed was “for me” and into opportunities by being present and willing to say “yes.”
If you feel, as I did, unsure or afraid to step into opportunities that seem “too big” or “too advanced,” this is your invitation to do just that. Understand that growth happens over time and it is a marathon, not a sprint. All experts start at square one, but they did have to start. We are limited only by our willingness to try, so don’t be afraid to take advantage of the wealth of knowledge throughout your office and across the state. Make the most of this time to practice those trial skills, so when you finally have a jury looking to you, you’ll know exactly what to do—and even where to stand!