How Prosecution Can Be Like a Mathematical Formula

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From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs, to shed light on how they fit into the larger legal ecosystem. In this episode, Derek Tokaz interviews a county prosecutor about his rare arrangement of working part-time with a private practice on the side.

Derek Tokaz:

We're joined today by John Holscher, a 2011 graduate from Drake Law School and assistant county attorney in Story County, Iowa. Story County has about 100,000 people, which is significantly larger than where you took your first job as a prosecutor right out of law school. What I find most interesting is that you did that part-time and worked in private practice on the side. How common is that arrangement in Iowa?

Jon Holscher:

I believe it's fairly common. Most Iowa counties are pretty rural. And so in order to really kind of attract and maintain prosecutors in those counties, a lot of times the county attorney will decide to be part-time versus full-time. Part of its budgetary for the county and just simply not busy enough really to maintain a full-time prosecutor.

Derek Tokaz:

So that's sort of the opposite of the stereotype we get from legal TV shows where the prosecutors are swamped and understaffed. This is a situation where you actually, in that county maybe only need somebody part-time or part-time in addition to a full-time prosecutor.

Jon Holscher:

There are various arrangements throughout. Some counties have just the county attorney who's full-time, and then they will also employ a part-time county attorney as well. And typically the counties that have either the one to two county attorneys and they're doing everything, not only just the criminal prosecution through juvenile court, but also any of the civil representation from the county as well. So the county's acquiring property or engaging in various contracts or anything like that. The county attorney handles all of that. So in the more rural counties that you put on a lot of different hats, and then the more urban counties, you're able to get more specialization through focusing on criminal law or even specific areas of criminal law, and then also the juvenile and civil representation as well.

Derek Tokaz:

So this arrangement almost sounds like the setup of an exam question for a professional responsibility class. When you're wearing these multiple hats. Can you talk a little bit about what limits you have on your private practice when you're also working at the same time as a prosecutor?

Jon Holscher:

The ethical rules in the prosecutorial standards prevent any prosecutor from ever taking on any sort of criminal defendants anywhere within the state. An example of that, kind of the difference between that and of a magistrate that we have in Iowa, is that a magistrate is able to still take on criminal defendant representation outside of the county that they are the magistrate in. But as a prosecutor, as a county attorney, you're not allowed to take any criminal defendant representation anywhere throughout the state. It can create some issues. When I was there, I had just a couple clients that I was representing on my private practice that eventually became defendants. Depending upon the situation, I would either conflict myself out of the civil representation and encourage them and have them find a different attorney to represent them. Or the flip side, we would bring in a special prosecutor to prosecute the case. Typically, that'd be from a county attorney, from a neighboring county that would come in and usually agree to prosecute the case. I think that's a pretty common agreement throughout most of the rural counties. If anything comes up, kind of neighboring county attorney will typically come in and help you out when needed. It was pretty rare for that to happen, but it is an issue that would come up and occasionally and as long as you're diligent about it, you just usually no issues with it.

Derek Tokaz:

The next thing that I am curious about is how this works in terms of scheduling, because I imagine even with normal legal practice, there's always a lot of variation in schedules, just workflow, and so how do you make that work with two different legal jobs?

Jon Holscher:

That was kind of the hardest part about it, and one of the reasons why I left was because, at least for me, I felt it was hard to really generate a large private practice because of the fluctuations in the county attorney's side. In my old job, I was responsible for what we'd call indictable misdemeanors and the lowest level felonies. So a lot of drunk driving charges, low level thefts and lower level assaults, that fluctuated greatly. And so that fluctuation really, for me, kind of prevented me from really taking on a lot of clients. And the scheduling part of it was never really an issue. It was more really of a time issue. And the judges around there understand, they know everybody, and it's a pretty small legal community, so they're usually fairly willing to work with you if you have scheduling conflicts. What made it easier was for the county attorney, for the prosecution work, you would have court service days, in our county, we would have a judge there every Friday and he'd be there pretty much just the morning.

So that's when you had all of your court work. So if there's any arraignments, motions to be argued, anything like that, everything was done on Friday morning and then we had jury trials once a month because prosecution side was consistent on those days. You just knew to schedule yourself outside of those days. The actual scheduling part never became too much of an issue, I was always concerned about spreading myself too thin and really taking on a large volume of civil cases because you simply never knew when you suddenly might just get a really big time, intensive criminal case that you would need to devote yourself to and take yourself away from your civil responsibilities and vice versa.

Derek Tokaz:

And so what type of work were you doing in your civil practice?

Jon Holscher:

Farmer law, mostly, little bit of civil litigation, also doing a lot of business entity work. There were a lot of big farming communities up there, so we did a lot of work setting up farm corporations, LLCs, and some real estate and transaction work.

Derek Tokaz:

And so how long were you in your private practice?

Jon Holscher:

Two years.

Derek Tokaz:

So what led you to that transition?

Jon Holscher:

I really wanted to be a full-time prosecutor, full-time assistant county attorney. In law school, I really gravitated towards criminal law. I did an internship at the Story County Attorney's office, a prosecuting internship. I don't know, I just never really had the drive to really take on a lot of private clients. It just wasn't something I was very interested in. And if I had something to work on for county attorney work or versus civil work, I would always choose the county attorney work first and then get that done before going back to my civil representation. So-

Derek Tokaz:

What is it that drives your interest in criminal law?

Jon Holscher:

I mean, what really drew me to criminal law first was for whatever reason, it just clicked in my head. I first started undergrad to be an actuary, for whatever reason, I just didn't like statistics, and statistics just didn't click for me. And so I switched from actuarial science into finance and also got a minor in mathematics. And then, yeah, when I started law school, I figured I'd go into some sort of business or securities law of some kind. And I don't know, I just found it to be incredibly boring. But for whatever reason, my criminal law class, everything just clicked and it just stuck with me, and I found it very interesting. So I kept going deeper and deeper in it. And the more I learned about being a public defender versus prosecutor, I just found myself more and more drawn to being a prosecutor. I don't know if it's just the elemental nature of it, it's kind of like a math formula almost for me, and it just kind of works in my head for whatever reason. And also too, I mean you have the basic requirements. It's a good job that you have and it's a good job security and usually pretty good paycheck and good benefits too. So that always helps.

Derek Tokaz:

All right. So when you moved to Story County and took on the full-time prosecution job, were you doing similar work as you had in your first position or was there much of a change in the sorts of cases that you're prosecuting?

Jon Holscher:

Pretty similar. In the part-time job, not only was I doing indictable misdemeanors, but also what we'd call a simple misdemeanor and kind of small claims court stuff. And then a common one, particularly in Story County because of the college public intoxication. So when the school's in session, that is a pretty busy docket. And also too, we like to have a prosecutor dedicated to it because you're kind of the face of the county attorney's office, having a dedicated prosecutor there when you're dealing with traffic court most of the time. And most of the people that you're dealing with are self-represented pro se defendants, and are expected to put on a good face and give a good impression of the county, because that position is the position that has the most interaction with the general public.

When I first started, that's what I did. I did nothing but simple misdemeanors in the traffic court, and I was only there for a couple of months when I started here. There was a lot of turnover with attorneys moving on. After I started then within a few months, my boss wanted me to take on more serious charges, the indictable offenses, which also was a lot of the same stuff that I was doing from before. So in terms of the actual cases, there wasn't really a change for me between my old job and then coming into Story County. I mean, the big difference was just in dealing with the different people, new defense bar, different judges. That was the biggest change. And then also being in a bigger office, going from an office of just me and the county attorney to now, I think when I started there were 12 attorneys I think. And so that was a difference too.

Derek Tokaz:

Can you talk about how having a different defense bar and a different set of judges changed what you do?

Jon Holscher:

I mean, the big difference is in my first job in the more rural counties, there's only a handful of attorneys in the area. My old job it was called Wright County. And in the entire Wright County bar, there were seven lawyers that were actively practicing and regularly practicing within Wright County. And only four of them did any sort of criminal law work. I mean, this is just my anecdotal guess, but 80% of the cases that I prosecuted in my old job were at the same four defense attorneys. You got to know each other really well. You were pretty friendly with each other and it was very collegial. And same thing with the judges too. You had the meeting, you'd have court service day and everyone would be there and you're all kind of talking and hanging out. And especially when there's downtime between hearings, you're waiting for a defendant to show up so you can have the next hearing. You're all kind of talking and hanging out. Juvenile court especially, I mean, it was the same people representing mom, dad, and the kids. And so in juvenile court service days, everyone would typically have lunch together, the prosecutor, defense attorneys, judge, go back in and finish the day in juvenile court.

Derek Tokaz:

And how does that compare to Story County?

Jon Holscher:

Story County I think is a little unique in how contentious our cases can be. And also dealing with the new round of judges too. Part of it, there's just more people, there's more personalities to go around and so you don't quite build the same relationships that you did before. We have an actual office of the public defender here in our county. And so most of the cases you're on are with the public defender, but you do get attorneys from Des Moines and from Ames and all over. So it's a little hard to build the relationships. And also too, the director of the Public defender's office is well known within the area to be extremely contentious and their attorneys are extremely contentious. For an example, they have a policy that they will never waive their right to speedy trial unless it's absolutely necessary.

In my old job in Wright County, the only time anyone ever demanded their right to speedy trial was if they had a client that was still in custody for whatever reason was not bonded out, or were not released at their initial appearance. So typically, and I think what you see in a lot of counties is you see people, if their clients are not in jail, then you'll see a waiver of speedy trial. With our public defender's office in Story County, it doesn't matter if they're in custody or not, it's always demanded. So that's the one easy example of how it is. And other things too, in my old job, never once I think heard the word Brady, and down here in Story County it's pretty common. You get accused of prosecutorial misconduct quite often, you get accused of Brady violations quite often. And so it's something that again, in just kind of reflection of just more contentious nature I think.

Derek Tokaz:

And so for people who might not be familiar with it, can you just briefly describe what a Brady violation was?

Jon Holscher:

So the way Brady works is if it's learned that the prosecutor intentionally withheld exculpatory evidence to the defendant, that is grounds to have a case overturned, then the defendant's entitled to a new trial. We get accused of that a lot by our local public defender's office.

Derek Tokaz:

So you had mentioned work on simple misdemeanors, but it's starting to sound like you're probably doing more serious prosecutions.

Jon Holscher:

Yeah, now I am. When I first started, I was doing only the simple misdemeanors. I've really bounced around a lot and done and prosecuted wide variety of cases. The most serious one was a year ago, September, a case I finally went to trial. It was a kidnapping and rape case. In that case, the defendant was looking at life in prison. And then since then, prosecuted a lot of sexual assaults, robberies, major burglaries. Right now I have a pending vehicular homicide, a drunk driving accident that resulted in death. I mean, we in Story County, few of us actually have a direct only focus line of cases in our simple misdemeanor guy focuses mostly on the simple misdemeanors, but then we'll occasionally get a drunk driving charge. And then we also have a dedicated domestic abuse prosecutor that's through a grant. So she has to have, the vast majority of her cases has to be domestic abuse cases. And then the rest of us pretty much just maintain a general case docket.

Derek Tokaz:

And do you think maybe some of the contentiousness that you described might have to do with the seriousness of the charges or do you see that across all levels?

Jon Holscher:

No, it's across all levels. It really boils down to a clash of personalities between my old boss and the supervisor in the public defender's office here locally, it's really where it started. They clashed a long time ago and it's just kind of always carried over.

Derek Tokaz:

So John, can you walk me through the steps that you go through with the prosecution, and especially how you decide which cases to prosecute?

Jon Holscher:

So in the vast majority of cases that we do prosecute, we'll begin with an officer making an arrest, then we take it over after the arrest is made. What will happen is then they will file the charges, submit to us the police reports, and then we file the formal indictment is how it usually goes. You're more serious charges, there's more investigation that happens, and then there's typically more conversation between the prosecutor and the investigating officer and then determining the most appropriate time to file charges. Depending on the case, there can be a clash between the prosecutor and investigating officer. So typically if it's violent crime that you're investigating, you weren't able to make an immediate arrest and so there's an ongoing investigation, there's a kind of attention that can build. Law enforcement wants to nab the bad guy as quick as they can, and then the prosecutor always wants more and more evidence and so there's a natural kind of clash intention there that can arise.

Derek Tokaz:

So when is a good time to take that next step?

Jon Holscher:

For the most part, the cases that you see all the time, you have a good sense of what your elements are and what's necessary to get a successful prosecution out of the case. It's the ones that you don't see often. So just this past fall and winter, we recently had a tax evasion case that was brought forward. It's pretty rare for us to ever, I mean, don't even know, it may have been one of the first ever tax evasion cases that we really prosecuted in Story County. That's just rare for us, especially on the state level to see any real tax evasion prosecution. So the case is assigned to me and the investigation, so what I did was, you talk with the investigator, he sends you everything that he has, you get all that first, and then he tells you what his idea with code sections you were looking at.

Then when I do is I look at those same code sections and you break it down elementally, you read the section and then you try to figure out what your elements are and what you need to prove. Sometimes if you can't figure it out from the code section or if it's not real clear, you can pull up, we have access to the Iowa Bar Association's standardized jury instructions and you can look there to see if they've broken it down and what the elements are, and then you plug it in. So what I do, at least, you look at the elements and then you start looking through the police reports and you start plugging in what information you have from your investigation and plug it in to see how it fits within the elements.

Derek Tokaz:

So what if you don't have enough evidence for each element?

Jon Holscher:

Then you got nothing, then you can't go forward, no matter how strong your evidence might be on one element, if you don't have any evidence for your third or fourth elements, then you're done. You can't go forward. You can't really create a mathematical formula for knowing when there is enough. It's more of a reaction or maybe not necessarily a reaction, more of a judgment call based on prior experience and knowing the people involved and what it will take to get you over that hump to a successful prosecution. We've also been able to maintain and create a good working relationship with local law enforcement agencies. They all understand that simply because the charge is filed, that doesn't mean the case is over, that investigation can continue to go on. If it's from an agency that we're not typically working with on a regular basis.

So on this tax evasion case, the investigator in that case was a state agent. Their office is out or Des Moines. And so I had never met him before, but we had a conversation at the start of it that simply because the charges are filed, that doesn't mean I'm not going to ask you to hunt down something more or figure out something else based as the case is going on. And so we always make sure that that is established right away. We will continue to be looking into and following up with things as the case progresses through the prosecution and that's evidence that would even help or hurt the case. It's always important to make sure we're continuing to follow up with that.

Derek Tokaz:

Is there a part of the process that you find particularly appealing or that sort of had that just innate interest for you?

Jon Holscher:

I think it really boils down to the nature and what is expected of the prosecutor in the criminal justice system. The way our system works, it requires a prosecutor with a strong moral compass and a strong understanding of the law and a strong sense of justice, and to make sure, and always tried to do their best to do the right thing. The prosecutor always is to remain above the fray and above pulling any fast ones or trying to sneak by anything, that's not what the prosecutor is to do. A prosecutor that isn't there to just only appease another entity or another person or a prosecutor that's just simply there to raise their own spotlight, I guess is typically not what you would want. And I know our office really tries hard to hold ourselves that high standard. It can be very frustrating. That's probably the biggest frustration that you take from the job is the clash of personalities that you end up dealing with.

In law school, you learn about all these high ideals that come from not only the prosecutor, but lawyers themselves, the high ideals that they're supposed to hold themselves to, the high ideals that judges are supposed to hold themselves to. You see it like I was talking about earlier with the just clash of personalities between county prosecutor and the local public defender. And you can see it and the humanness of the judges, even though the vast majority of the time the judges are doing everything they can to uphold their ideals and their responsibilities that they're supposed to take on as judges. But then you'll see it occasionally a defendant gets a far more substantial sentence than what they ever should have, just simply because the judges had a bad day or one of the attorneys said something to make the judge mad and so he took it out on the defendant.

It happens, it's rare, but those are the frustrations. And then you see it on the other side too, that you have a defendant who deserves, you'll kind of be locked up and deserves that punishment, but then for whatever reason the judge just simply lets him off with the old slap in the wrist. Those are the frustrations that you have with it. That's just life, whenever you have the human element entered into it. But what always brings me back and always keeps me going with it is it's the high ideals that the prosecutor's expected to hold themselves to, and then also just the work itself. How you break down information and you sort it out and you sort things kind of in a mathematical formulaic way.

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