Tips for prosecutors (and good advice for lots of us!)

Today’s post is the result of a query I received from a Duke Law grad who is a military lawyer (called a “judge advocate” or “JAG” in military parlance).  She’s returning from an overseas tour and is now headed for a  prestigious assignment (and her dream job) as a special victims trial counsel (prosecutor) for one of America’s most important warfighting commands.

Such assignments are reserved for the best trial practitioners and require not just litigation expertise, but also leadership ability.  The Duke grad wanted to know if I had any advice for her, and I shared a couple of thoughts from my years of service as a prosecutor, defense counsel, and military judge.

However, I wanted her to also get the perspective of someone with more recent experience than mine, and retired Air Force colonel Kate Oler was the perfect person; in fact, I was sure Kate’s views would be more salient and useful than mine.  She’s also quite a role model for anyone wanting courtroom success.

Iraq, 2007

I know Kate well because one of her Air Force assignments was as my executive officer (and, later, her husband Adam was my executive officer).  She is wicked smart, strong-willed and direct, yet highly personable – the ideal person to keep me on track, especially as we traveled to military bases around the world, including stops in the Middle East.

Her work ethic was awesome: despite having a young son at the time (the Olers later added a lovely daughter), she typically arrived at our Pentagon office at around 5 a.m. and often didn’t leave for another 14 hours.  Yes, 14 hours (or more!)

Col (Ret.) Oler at the 2019 LENS Conference

She left that assignment to attend the judges’ course where she finished #1 in the class.  She had already earned a phenomenal reputation as an extremely formidable courtroom advocate, and had demonstrated it as both a prosecutor and defense counsel before ascending to the bench.  Her last assignment prior to retirement was a critical leadership post as the Air Force’s top prosecutor (and as the Air Force’s top appellate attorney), a job which includes extensive supervisory responsibilities across the globe, not to mention courtroom excellence.

Some Lawfire^® readers may remember Kate’s presentation at the 2019 LENS conference entitled “Professional Responsibility, Ethics & the National Security Lawyer: Distinctions with a Difference.”  Like that presentation, her remarks below are not just savvy, they are eminently practical.

The military justice system:

Just to put Kate’s remarks in some context, let’s quickly review a bit about the military justice system.  It is established by Congress pursuant to its Article 1 Constitutional power to “make rules” for the armed forces.  Those rules are found in the Uniform Code of Military Justice (10 U.S.C. § 801, et.seq) and it prescribes the offenses and procedures for the military’s criminal justice process

Citing prior cases, the Supreme Court in Parker v. Levy explained why the “military constitutes a specialized community governed by a separate discipline from that of the civilian” by saying simply that the “differences between the military and civilian communities result from the fact that “it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.”

Still, military trials have much in common with their civilian counterpart because by law (10 U.S.C. § 836) military trials must, as far as the President deems “practicable,” apply “the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.”

In 2018 Justice Kagan in Oritz v. United States elaborated on the military’s current system:

“Today, trial-level courts-martial hear cases involving a wide range of offenses, including crimes unconnected with military service; as a result, the jurisdiction of those tribunals overlaps substantially with that of state and federal courts.. [t]he system begins with the court-martial itself, an officer-led tribunal convened to determine guilt or innocence and levy appropriate punishment, up to lifetime imprisonment or execution.”

Noting that the “essential character” of the military justice system is “judicial,” she observed:

Justice Kagan

“Each level of military court decides criminal “cases” as that term is generally understood, and does so in strict accordance with a body of federal law (of course including the Constitution). The procedural protections afforded to a service member are “virtually the same” as those given in a civilian criminal proceeding, whether state or federal.” 

With that background, let’s hear Kate’s very candid advice for a new prosecutor assuming a challenging position (and, really, for those not-so-new):

Colonel Oler’s advice:

The first thing I would say is that she should have confidence that she is the right person for the job. I remember when I started my senior trial counsel position, I wondered (silently to myself, of course) whether I could do it.  

It is a lot of responsibility, both in terms of the type of cases you get assigned, and also the fact that you’re the first chair trial counsel, and are responsible for what happens in the courtroom. I wondered if the JAG Corps made a good decision in choosing me to represent the Government. I quickly realized that I was up for it and that they (the Corps) weren’t crazy for assigning me to this position. 

My next piece of advice could be labeled as “trust but verify.” I believe part of the job description is to grow the next generation of litigators.  

Some will really want the experience, and some will not. Be hands off enough to let people get the litigation practice they need, but hands on enough to make sure they will do a good job. I made the mistake early on into the job of letting a relatively experienced assistant trial counsel (he had done about 10 trials) do the sentencing argument without me listening to it first. It was crawl-under-your-seat awful. Needless to say, I made that mistake once. 

My personal belief is that you “win” in court by outworking your opponent. I have seen under-matched litigators in terms of ability win a case because of hard work and good preparation. 

Never underestimate your assistant trial counsel’s lack of knowledge. I don’t say this to be mean. We were all there once. 

Remember that you are a leader. Younger JAGs will want to be like you one day. Take the opportunity to mentor them. 

Finally, it’s important to remember that these cases are hard, especially the cases that involve children. They’re not just technically difficult, but they can take an emotional toll on you. You have to put your best out there every day, and at the same time, remember how important it is to take care of yourself.  

During my third year as a CTC [Circuit Trial Counsel], I was TDY about 240 days. One day, I was at the gym, took my blood pressure at one of the gym health machines, and noticed it was high. I went to some medical appointments and learned that I needed to be on blood pressure medication.   

After I left the job, my blood pressure was normal again. When I was the Chief Prosecutor, I told this story to all of my folks during my in-brief with them. It turns out, several of them had experienced the same thing. So long story short, you need to take care of your health.

The job is an amazing one — enjoy it!!

About the author: 

Col (ret.) Oler

Colonel Katherine E. Oler, USAF (Ret.) was appointed as a Special Master of the United States Court of Federal Claims on November 29, 2017. She graduated cum laude from Wellesley College in 1993, and received her J.D. in 1996 from the Boston University School of Law. Prior to her current appointment, Col. Oler served 21 years as an Air Force Judge Advocate.  She primarily worked in the criminal litigation arena, including as a first chair felony prosecutor, a defense attorney, and a trial judge – culminating with service as the Air Force’s Chief Prosecutor and Chief Government Appellate Counsel.