trialdex litigation tools

Book review: For the Prosecution by C.J. Williams

For the Prosecution is a new book written by United States District Court Judge C.J. Williams, and published by Rowman & Littlefield. Judge Williams is the author of two other books, Advanced Evidence: Applying the Federal Rules of Evidence in Pretrial and Litigation in 2018, and (with a co-author) Federal Criminal Practice in 2016 (published by West Academic as part of its "American Casebook" series).

Judge Williams spent about twenty years as a federal prosecutor before his appointment as a Federal Magistrate in 2016. He also worked in private practice, doing criminal defense work, early in his career. The Acknowledgment section makes an interesting point about the timing of the book. It was written at just the right time, not too long after leaving his job as a federal prosecutor, so that he could write freely about his prosecutorial experience while his memory was still fresh.

He emphasizes that this is not a trial advocacy book. Rather, it addresses the 90% of a prosecutor's job that takes place outside the courtroom.

Most of the work involves prosecutors interfacing with law enforcement officers, witnesses, and victims; developing an investigation; deciding who to charge and how to prosecute cases; identifying what charges to bring and how to draft the charges; negotiating plea agreements; marshaling and organizing evidence for hearings and trial; and preparing for grand jury presentations, motions hearings, trials, sentencing hearings, and appeals. Much more of a prosecutor's real life is spent in the field, at jails, in conference rooms, on the phone, and behind a desk than it is standing in a courtroom before a jury. And whether a prosecutor prevails in jury trials depends entirely on the work performed long before opening statements.

The tone of the book is set in the first chapter, which begins with the oft quoted passage from Berger v. United States: that a prosecutor's duty is not to win, but to seek justice; to strike hard blows, not foul ones. Consistent with this, the book repeatedly counsels prosecutors to take the high road.

They should, for example, never denigrate defense counsel, judges, or even defendants, inside and outside the courtroom. He recognizes how difficult this is to resist where defense counsel has unfairly attacked the prosecutor in court, and suggests that the response should be directed to the judge, not at the other attorney; that emphasis be placed on the effect of the defense statements, not on suggestions of evil intent or motive; and to consider requesting a curative instruction. In other parts of the book, he recommends liberal discovery and avoiding stereotypes during jury selection.

He takes a common sense approach to the use of law enforcement resources. For example, around the clock surveillance and wiretaps are expensive and mind numbing jobs that should not be requested unless they are really needed. At the same time, he helpfully describes alternative investigative techniques—"freeze letters" to Internet and social media providers, trap and trace, cover letters, and so on. He notes that prosecution teams may be essential in complex cases, but they work best when kept small.

This is just a small fraction of the matters treated in this 368-page book. The important takeaway is that this book would serve as an excellent orientation for new U.S. Attorneys, AUSAs, SAUSAs, and DOJ attorneys, and a helpful refresher for experienced government attorneys, or any judge or attorney regularly working in the area of federal criminal law and procedure. It is therefore a highly recommended addition to United States Attorney and other federal law libraries.

A short disclaimer: I am a former DOJ attorney, and worked with Judge Williams on a couple of projects when he was a Senior Litigation Counsel years ago. We worked in different offices, and I am not sure that I ever met him in person, but recall being favorably impressed with the quality of his work.

(04/25/21) (permalink)