Marcia Clark is a Frustrated Project Manager

The tactics…no, amateurs discuss tactics,…. Professional soldiers study logistics.

Tom Clancy

Consider this anecdote from World War I. The Germans had written a detailed plan for the invasion of France. It was so detailed that when mobilization day came, there was nothing for the lead general to do. He sat on his couch and read a novel. (See Quintin Barry, Moltke and His Generals at p. 136.) In a perfect world, this should be our situation when a defense lawyer announces ready. Everything should be done. I know that’s not reality. I’ve often heard the prosecutor’s motto: “Always ready and never prepared.” The late nights and scrambling that we associate with trial work is really associated with inadequate time to prepare. If we want to be more specific, we might say inadequate logistics, “the detailed coordination of a complex operation involving many people, facilities, or supplies.”

I enjoy reading about trial tactics, but I now understand that logistics are the most important part of a successful trial. You get your first hint of this when you can’t get your witnesses on the stand at preliminary hearing. Later, as you begin to try misdemeanors, you will need to preserve the chain of custody for the blood draw on a DUI, for example. As you get to violent crime, the challenges only increase with the importance of the case. Where is the murder weapon? Has it been tested by ballistics? Was enough blood kept for defense testing? Who lifted the prints? Who analyzed them?

These tasks are much more difficult than, say, closing argument, or questioning a witness. Nevertheless, there isn’t much written about trial logistics. This thought struck me as I read about a famous prosecutor complaining about being buried in defense discovery motions.

As primary litigator, I shouldn’t have been saddled with these day-to-day distractions. I should have been concentrating on building what is called the case-in-chief – the essence of a presentation that proves the defendant committed the crime. But there was absolutely no time for overall planning or, indeed, any creative though abut this case.

Marcia Clark, Without a Doubt (1997)

As I read this, I had two thoughts. First, this was the biggest case at the LA DA’s office at the time. They were reeling from a hung jury in the prosecution of the Menendez brothers, another high profile murder. They didn’t want to be embarrassed again. Is it possible that the office had so few resources that Clark had to respond to discovery motions herself, and had no time for “overall planning?” It’s possible, but unlikely. Several other lawyers have appeared already in the book, helping on other parts of the case, that could certainly handle discovery motions for Clark. It’s more likely that she did not delegate this work properly and the case suffered for it. I sympathize with her, the vast majority of cases are prosecuted by deputy district attorneys working alone. Much of case preparation is unstructured, and prosecutors can develop their own idiosyncratic ways of doing this, which come with a general distrust of the work of others. Although I understand these things, they don’t excuse the failure to delegate. This failure, at its heart, is a failure of logistics. Clark either failed to get adequate staff, or failed to use them.

My second thought was about a podcast called You’re Wrong About, which has an extended series of episodes on the O.J. Simpson trial. The hosts pick a subject and challenge the conventional wisdom. In this case, they were challenging the convential wisdom that Marcia Clark lost the “Trial of the Century.” They point out, correctly, that she was not in charge of the sloppy criminalist, the detectives who failed to adequately interview the defendant, the judge and his incorrect rulings, and the hidden prejudices of the first detective to enter Simpson’s property, Mark Fuhrman. She did not supervise them. Indeed, since they all worked for different agencies in the criminal justice system, none of which were the DA’s office, she had no ability to even reprimand them. When she discusses the investigation of the crime in Without a Doubt, she must constantly swallow her pride and put on a happy face if she wants to keep a working relationship with these people. This is a familiar scenario for many prosecutors. For that reason, the hosts of You’re Wrong About argue that she did not lose the Simpson trial. She was more like a frustrated project manager. He project failed because of people she couldn’t adequately manage or control.

This struck a chord with me. I kept thinking that it was related to an important big picture concept. Sure enough, on page 1 of my 1L criminal law book, the authors address this head-on.

To speak of the criminal justice “system” is something of a misnomer… the agencies of criminal justice are not part of a single, coherent organization. Their relationships with one another often are haphazard and uncoordinated. […] Each of the steps in the process is managed by an official who is, to a considerable degree, independent of the others, and the officials are responsible to different groups of constituents. […] The criminal justice system, in short, is extremely decentralized.

Kadish, Schulhofer, and Steiker, Criminal Law and Its Processes (8th Ed.)

This is the most important logistical lesson from the Simpson investigation. Indeed, I think it’s the most important lesson for any prosecutor seeking to improve her trial logistics. No one works for you. Not the sheriff investigating the crime, not the police making the arrest, not the coroner conduct the autopsy, not the jailer holding the defendant, not the judge conducting the trial and sentencing the defendant, not the correctional officers or parole officers responsible for the defendant after conviction. All of these groups are responsible to different organizations. None of the organizations are the DA’s Office.

I would point out these hard facts on page one of my book on trial logistics. We are managing a project where we have no control over those underneath us. We will be held responsible in a public courtroom for people who are not responsible to us. We have to find a way to get things done in this powerless situation. Maybe it’s personal charm. Maybe it’s yelling. Maybe it’s working tirelessly to do everything yourself. That definitely seems to be Marcia Clark’s method. Whatever it is, the stakes are high. So high that this message should be given on the first day of training, explicitly, instead of discovered in the true crime section or a battered textbook. Or worse, discovered through hard experience, like Clark did.

Notes

Prosecutors may have access to DA investigators. Since you are in their chain of command, DA investigators are a ray of hope in a dark situation. Use them if you can get them. But if you aren’t prosecuting a celebrity athlete/actor, you probably can’t get them.

There is a different way. In the federal system, the FBI, the US Attorneys, the federal bench, and the federal Bureau of Prisons all work for the Attorney General at the Department of Justice. Is this better? I’m not a federal prosecutor, I’m a real prosecutor, so I don’t know. The professors mentioned above think our “chaotic arrangement” is a “valuable mechanism for preventing the accumulation and centralization of power, with its accompanying dangers of abuse.” For what it’s worth.

Both logic and logistics ultimately derive from the Greek logos, meaning “reason.” But while logic derives directly from Greek, logistics took a longer route, first passing into French as logistique, meaning “art of calculating,” and then into English from there.

I realize that Tom Clancy, who is not a veteran, is a weird person to quote about logistics. I did it anyway, because Clancy is an English major, just like one of the hosts of You’re Wrong About, which had a nice symmetry to me. Since that’s not obvious to you, dear reader, I feel compelled to point it out here. Marcia Clark was a political science major, but she has written a lot of books, so I think she fits the type as well.

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