AUTUMN: A CHANCE TO BE A REAL LAWYER
There’s no pomp and circumstance about this room at the US Attorney’s Office, just off the Judiciary Square Metro stop, as Channing Phillips—a striking man with salt-and-pepper hair—takes the podium. Ceiling fans whir overhead, and fluorescent lights cast an unflattering glow.
But this fall day in 2009 is a momentous occasion: Phillips, the acting US Attorney, is about to swear in a group of new assistant US Attorneys—also known as AUSAs, or line assistants.
“For many of you, this day has been a long time coming,” Phillips tells the ten prosecutors joining his team. He acknowledges that some of the family members in attendance may be wondering why their loved ones signed up for this: “Clearly, it wasn’t for the salary. It will be the look from that family member or victim that will make it all worth it.”
They all line up and take their oath. Then each new AUSA gets a photo taken with Phillips.
In total, 29 new line assistants were sworn in last year at the DC office—most hired by then–US Attorney Jeffrey Taylor, a George W. Bush appointee. When Taylor resigned after President Barack Obama took office, it fell to Phillips, a career prosecutor, to keep the office running until Obama’s pick for the job, Ronald Machen, started in February 2010.
To get here, the new line assistants had to survive a rigorous interview process. Applicants start with three hourlong interviews, each with a different senior assistant prosecutor. Generally, if two of the three vote them qualified, they move on to a second interview and a videotaped opening statement.
“They grilled me,” recalls Thomas of her second interview. “You know how you’re always sitting up proper in an interview? I had to lean back. I exhaled and was like, ‘Okay, bring it on.’ ”
The panel rapid-fires questions: “Why do you want this job?” “Is that really your answer?” “Do you know how hard you’ll have to work?”
For Thomas, who is in her mid-thirties, becoming an AUSA was a second career. The Oakland native had earned a finance degree from California State University at Fresno and an MBA from the University of California at Berkeley and had worked in financial services. She was an executive at the Gap’s San Francisco headquarters when she had an epiphany: I’m not saving the world—I’m clothing the world. And not even the world, just rich people who can afford a $32 T-shirt!
She then founded and ran a nonprofit devoted to promoting diversity within business schools and helping minority MBAs network.
She started at Howard University School of Law thinking her degree would be useful in a business career, but criminal law quickly became her passion. Yet she nearly missed the chance to become a prosecutor.
Thomas had a plan after graduation—an offer from the high-end law firm Morrison & Foerster in San Francisco, which would bring her back to her family in the Bay Area, and an offer to clerk beforehand for a judge her first year out of school. The firm would pay $175,000 plus a $50,000 bonus for the year she spent clerking. But the best-laid plans can go awry, and Thomas’s did during her clerkship as she watched President-elect Obama speak on inauguration weekend about the importance of community service. He quoted Martin Luther King Jr.: “Everybody can be great because everybody can serve.”
This was her chance to have an impact. She applied to the US Attorney’s Office the day of the deadline.
After the second interview, prospective prosecutors are handed a set of facts from a case they’ve never seen, given an hour to review them, and then told to present an opening statement while being taped. This phase has brought some interviewees to tears and caused others to walk out.
It’s meant to test whether they can handle a situation like the one Thomas was in when she tried the case against Lisa’s boyfriend five minutes after first seeing it.
“It does tend to put the fear of God in them,” says Jeffrey Taylor, the US Attorney who hired much of the 2009 class that Channing Phillips later swore in.
Even if a candidate survives the opening statement, it’s not over. The last step is a meeting with the US Attorney, who has the final say about whether a candidate is qualified. Taylor liked Thomas, and soon she was calling Morrison & Foerster to reject the firm’s offer. Her first assignment when she started in September 2009 was the misdemeanors caseload in the sex-offense-and-domestic-violence section.
Taylor—who now works at Ernst & Young advising companies on regulatory compliance and fraud issues—says that when he was hiring line assistants, he was looking for attorneys who were passionate about becoming prosecutors but who also understood the commitment and local ties the office has to the Washington community.
“I used to say to people if you just want to be a prosecutor in federal court, probably best to apply to the Eastern District of Virginia or the Maryland office,” says Taylor. “But if you want to be a trial lawyer and work on fascinating cases—sometimes heartbreaking, admittedly, but the cases that affect the day-to-day lives of your community—you want to be here trying cases in Superior Court.”
It’s November 24, 2009, and Thomas Bednar has one of those heartbreakers. The University of Virginia law-school grad was one of the first of the new AUSA class to join the office, in April, but he still managed to land his last choice in assignments: handling sex-offense and domestic-violence misdemeanors.
These cases—such as his first trial, about an incident where two female roommates had beaten each other up—were unlike anything he’d ever dealt with at his former job as an associate at Jones Day.
By mid-autumn, he was given a new, even tougher portfolio, known around the office as “the kid caseload.” Some of these matters still come out of the sex-offense-and-domestic-violence misdemeanor section, but some are also categorized as general misdemeanors. The common factor among them is that they all involve children, either as victims or witnesses to crimes.
Bednar, 31, comes off as a bit stoic. He doesn’t smile often. He wears conservative suits and preppy ties. It’s tough to imagine him working with children. But as he questions a fifth-grader in the witness box, it becomes clear he’s developed a knack for this.
He’s learned by November that before a trial it helps to sit down with the kids and talk to them about what to expect in the courtroom. Some have seen court shows on TV—Judge Mathis seems particularly popular—so he and the kids talk through the ways real court is similar to and different from television. It helps the kids open up. Sometimes it makes them laugh.
Children were a long way from his long-term goal—to handle national-security cases for the US Attorney’s Office—but all AUSAs have to start somewhere, and the cases were turning out to be more rewarding than he’d first thought.
The “kids cases” are more sophisticated than his first assignment. They involve more police work, more thorough investigations, and more paperwork. As a result, the office allows him more time to work; his total caseload has been reduced from about 100 cases to 60.
Today the fifth-grade girl on the stand has been through a lot. She and her sister say they were touched sexually by a stranger who snuck into their bedroom after they’d gone to sleep. The man they say is responsible is now seated in the courtroom in handcuffs and an orange prison jumpsuit.
Bednar uses simple phrasing that’s easily understood by the girls. He needs them to describe the man as specifically as they can, even though the bedroom was dark. “Could you tell if he was thin, fat, in between?” Bednar asks.
He moves on to more uncomfortable questions. He asks the fifth-grader to explain how she was touched. She makes a rubbing motion over her chest and says the man also touched her “private parts.” She’s barely audible.
During Bednar’s closing argument, the judge interrupts him. He pushes Bednar on the fact that the girls’ bedroom was dark and neither of them clearly saw the man’s face. They were able to identify the suspect only by the clothing he was wearing, including a distinctive-looking jacket covered in patches.
Bednar can’t dispute this, so he tries to turn it into a positive. He tells the judge that the girls testified candidly about what they could and could not see, which shows they’re credible witnesses who aren’t trying to embellish the facts.
In his closing argument, the defense attorney hammers on the issue of the dark room. Ultimately, the judge says that he believes the girls’ story and that he has very little doubt the defendant is guilty. But even the small amount of uncertainty is enough to require a not-guilty verdict.