Mechanics of Prosecution

By William C. Akins

Written with the novice prosecutor in mind, Mechanics of Prosecution will serve almost as a mentor, taking the reader through the role of the prosecutor, ethical and professional considerations, case analysis, charging decisions, trial, and appeal. It will greatly accelerate the reader’s professional development.

• Language: English
• Publisher: Page Publishing, Inc.
• Release date: Feb 1, 2022
• ISBN: 9781662458965

Book preview

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Mechanics of Prosecution

William C. Akins

Copyright © 2021 William C. Akins

All rights reserved

First Edition

PAGE PUBLISHING, INC.

Conneaut Lake, PA

First originally published by Page Publishing 2021

ISBN 978-1-6624-5895-8 (pbk)

ISBN 978-1-6624-5896-5 (digital)

Printed in the United States of America

Table of Contents

The Role of the Prosecutor

The Prosecutor’s Role in the Investigation

Early Court Proceedings

Developing Your Case

Discovery and Other Pretrial Considerations

Guilty Pleas

Witness Preparation

Jury Selection

The Trial

Post-conviction Matters

Summary

Foreword

Having taught law school for many years, I realized that law schools fail to train students in how to practice law. There is a big difference between theory and practical application. Finally, Bill Akins has created a how-to book in all aspects of being an effective professional prosecutor. When I started almost fifty years ago, it was on-the-job training. You watched, asked questions, hopefully got a reply, and did your best. Needless to say, some of my first trials were absolute disasters. With Bill’s book, you know what you have to do. Bill has used his many years of experience as a prosecutor in creating this book. It should be a must read for every prosecutor who wants to do a professional job.

Tom Jones

BA, Emory University

JD, University of Georgia School of Law

MA, Georgia State University

Assistant district attorney, Atlanta Judicial Circuit, twenty years

Senior trial attorney, Prosecuting Council of Georgia, twelve years

J. Roger Thompson Award for Distinguished Service to Georgia

Adjunct professor of law, Georgia State College of Law, thirty-five years

Introduction

What you hold in your hand is not a great work of literature, though I fantasize I have such a thing inside me. Nor is it a learned treatise on the subtleties of criminal law; there are more than enough of those available.

This book is designed for the relatively inexperienced prosecutor who may be without a full-time mentor or, worse yet, none at all. It is based on over thirty-eight years of state-level prosecutorial experience, including over 220 jury trials and 60 appeals, and targets the little things that mentors often forget they know and that might otherwise take you longer than you would want to learn them.

So, without further ado, here’s how to put all that esoterica you learned in law school to work.

Chapter 1

The Role of the Prosecutor

As you will recall from your law school ethics class, the paramount duty of any attorney is to represent his or her client zealously within the bounds of the law. Any attorney, that is, except a prosecutor—our primary duty is to do justice. As Preet Bharara put it in his book Doing Justice, we must do the right thing, the right way, for the right reason in every case, every crime, every defendant.

You should also keep in mind the primary ethical directive of my favorite fictional detective, Michael Connelly’s Harry Bosch, whose motto is Everyone counts or nobody counts. Every participant in the criminal process is a human being; some are pitiful, some are affluent, and some are nothing short of evil, but they are all human beings. You, as the prosecutor, have more power to guide everyone to the most beneficial resolution available than the defense attorney. Your influence on the process is second only to the judge. As Spider-Man told us, With great power comes great responsibility!

I have to tell you, the American Bar Association sets our bar mighty low. Model Rule 3.8 states that [t]he prosecutor in a criminal case shall, (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause. Really? The standard of proof at trial is beyond a reasonable doubt! If probable cause is your threshold for filing charges, you’re going to get hammered by the defense bar on a daily basis! (Note: since jurisdictions bring charges to court in various ways—indictment, accusation, information, etc.—I’m going to refer to that stage of the process simply as filing the charges.)

Please keep in mind that bringing a criminal case against someone is going to have a permanent effect on their lives, whatever the outcome. In the vast majority of cases, it is well deserved, usually because they have done something that has had an equally permanent effect on someone else’s life. Sometimes, however, an alternative to prosecution, such as a pretrial diversion program, may be the better long-term result under a given set of circumstances.

When deciding to file, you should probably be holding yourself to, at a minimum, something close to a clear and convincing standard. You also need to recognize and accept that many cases will turn on the credibility of the witnesses, but again, everybody counts; a crack-addicted, homeless prostitute who has been raped needs to have the violation of her dignity championed in court just as much as a socialite in the same position. To paraphrase, whatsoever is done to the least in society is done to all of society.

Other Ethical Issues

In addition to your obligations in doing the day-to-day prosecution which I discussed above, other things will arise which have ethical significance.

Publicity

At some point, you will be asked to address the press about a case. Here, again, Model Rule 3.8 (f) tells us that "except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s actions and that serve a legitimate law enforcement purpose (the prosecutor shall) refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent" law enforcement and other personnel associated with you from doing that or anything that could create prejudicial pretrial publicity. See Model Rule 3.6 on this as well.

If you remain professional in your courtroom utterances and restrict any statements to the press to matters of public record, you, personally, will be unlikely to go wrong. As with any law firm, the staff of