No Higher Calling, No Greater Responsibility: A Prosecutor Makes His Case

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I. Becoming a Prosecutor

The fact is, good prosecutors are made, not born.

I know for certain when I first thought about becoming a lawyer. I’m less certain about when I began thinking about being a prosecutor. In hindsight, I believe my choice to become a prosecutor was the logical culmination of various influences in my life before I graduated from law school. I have a good friend who claims he became a prosecutor because it was the only job he could find when he passed the bar. He then fell in love with the job and made it a career. Another friend says he consciously chose prosecution because he saw it as a political

stepping-stone. A female district attorney I worked closely with told me it was the role in the justice system she felt philosophically most comfortable with. I think that was largely my motivation as well. My story is unique, but I don’t think it’s unusual. I suspect I’m typical of many lawyers who choose to spend all or part of their career in public prosecution. The fact is, good prosecutors are made, not born.

While my life had a bumpy beginning, I had a warm and loving childhood. I was born to an unmarried woman from Ohio who, when she became pregnant, was sent by her family to Denver to have her baby. That was quite common in 1951. I was adopted when I was one month old by a couple in Colorado Springs. I attended a Catholic grade school for eight years. I was a boy scout and an altar boy who memorized his Baltimore Catechism and went to confession once a month. All my sins were venial, if not trivial.

When I was in the sixth grade, my teacher, Miss Holmberg, selected me to be one of three students in the class to debate a team from the seventh grade. On the appointed day, students from the entire school packed into a small gym to witness the oratorical competition. Several parents attended. The school principal and parish pastor were both in attendance. While I can’t recall the precise topic of the debate, it had something to do with the relative merits of public versus private education. Given the audience, my team had the enviable task of arguing the superiority of religious schools. As part of my preparation for the debate, I read several articles, including one in a recent issue of U.S. News & World Report, to which my father subscribed. The article discussed the fact that inner-city Catholic schools had higher standardized test scores than urban public schools, despite having considerably larger average class sizes. I didn’t cite the article in my principal argument because it didn’t address the specific issues that I was to cover in my limited time. However, the opposition made a big deal about large class sizes in religious schools, arguing they adversely impacted the quality of education. So I began my rebuttal argument by pulling out the magazine and quoting relevant research findings that undermined the heart of the opponent’s argument. The seventh grade team was rendered somewhat speechless and visibly demoralized. I managed to stay calm and conceal my glee. But beneath the calm exterior, I had a sense of how Perry Mason must have felt when his surprise witness devastated his opposing counsel’s case.

After the sixth-grade team was awarded a decisive victory by the judges, the school principal, Sister John Catherine, approached me. She was obviously pleased with my performance. You did a great job, John, she said. You really ought to be a lawyer. I didn’t know how to respond. No one in my extended family was a lawyer. In fact, I didn’t personally know anyone who was a lawyer. That night I asked my parents to clarify exactly what lawyers do.

But I never forgot Sister John Catherine’s suggestion. In fact, it was the only career advice I received in my entire life. From that point forward, I paid careful attention to what lawyers did. And I took every opportunity to improve my writing and oratory skills because I understood those were important for lawyers to have.

I also attended a Catholic high school. Despite the fact that my father died very suddenly when I was a freshman, an event that was the most traumatic in my life, I continued to obey all the rules. I was a good athlete and a very good student. I was elected student body president my senior year. But in terms of my eventual career choice, it was one of my teachers, Sister Georgetta, who had the greatest influence on me. I have frequently credited her for inspiring my interest in public service.

Sister Georgetta taught Latin. The best students were required to take two years of Latin and two years of modern language. Sister Georgetta was about eighty years old. She was less than five feet tall. She took her vow of humility so seriously that she never allowed herself to be photographed. But she had total and complete command of the classroom. Her desk in the front of the class was on a foot-high platform so she could see all the students. She had a deck of index cards with the names of all the students in the class, one name on each card. Boys were listed by their last names, girls by their first. She used the Socratic method, constantly asking questions of her students. She would pick a card and call on the student listed. If the student didn’t answer correctly within a few seconds, she would draw another index card. Because she would constantly shuffle the deck of index cards, no student could relax, even if they had just been called on. The resulting tension created a classroom dynamic in which even the most mischievous students tended to be attentive and compliant.

As a Latin scholar, Sister Georgetta spent several summers at the Vatican interpreting ancient documents. She was also an expert in Roman history and would intersperse stories about the Roman Empire with her Latin instruction. One day early in my sophomore year, she told a story about how Rome celebrated the return of its conquering armies from foreign campaigns. She described how the citizens of Rome would line the Appian Way and express their adulation as the heroes of the military campaign paraded by. Each hero would stand on his own horse-drawn chariot. But there would be a slave positioned directly behind him whose only job was to repeatedly whisper in his ear, "sic transit gloria mundi, which means quickly passes the glory of the world." The purpose was to remind the hero that life is short, fame is fleeting, and that the interests of Rome were greater than his self-interest.

For some reason, Sister Georgetta’s story impacted me greatly. My father’s recent death was my first real confrontation with mortality, and she related the story in such compelling fashion. Nothing endures but your character, she explained, and took every opportunity to subtly suggest that a life of service to others was more rewarding than material prosperity.

On the night of my high school graduation, I received several honors and awards, including a full academic scholarship to the University of Notre Dame. As I left the auditorium where the ceremony was held, I encountered Sister Georgetta. At the end of a brief conversation, she cautioned me, "Remember John, sic transit gloria mundi."

I never saw Sister Georgetta again. She died a few years later. But I related this story to family and friends on several occasions. In January 1989, on the day I was sworn in as the elected district attorney of the Fourth Judicial District of Colorado, my sister Sharon presented me with a needlepoint she had made that read sic transit gloria mundi. The needlepoint has hung on the wall near the door of every office I have occupied since that day. It’s a constant reminder that character is all that counts and that the difficult decisions I face must be decided on the merits of the issue rather than on what will bring fleeting public approbation. And it provides insight into why it is I have chosen to spend much of my legal career in public service rather than in more lucrative pursuits.

At Notre Dame, I majored in government and international studies. I had several professors who were self-described liberals and a few who were avowed conservatives. Two of the conservatives had the greatest impact on my thinking and my career choices. Professor Paul Black Bart Bartholomew taught constitutional law. Unlike so many other teachers I encountered, Bartholomew didn’t tout the U.S. Constitution as a means to solve every social problem or societal imbalance. He taught a reverence for the Constitution and the Bill of Rights as a statement of fundamental principles designed to ensure the supremacy of individual freedom vis-à-vis the state. Although his class was generally considered the most difficult in the major, I thrived on it and was the star pupil, according to the letter of recommendation Bartholomew later wrote to law schools. The experience reinforced my desire to become a lawyer.

I took political theory from Professor Gerhart Niemeyer. As I recall the story, Niemeyer had been a member of the Communist Party in Germany. He immigrated to the United States in 1937 with the rise of Hitler and began teaching at Princeton. Over time he became one of the most virulent anticommunists in academia. By the time I took his course at Notre Dame, he was in his late sixties but still a celebrity of sorts, frequently appearing as a guest of William F. Buckley Jr. on his TV show, Firing Line.

But it was Niemeyer’s conservative view of law and order that intrigued me the most. He discussed the optimistic view of human nature found in the work of Plato and Aristotle, both of whom emphasized man’s ability to be virtuous and the role of law to promote the public good. But from my perspective, Niemeyer was fundamentally a Hobbesian. Thomas Hobbes, a seventeenth-century English philosopher and the author of Leviathan, believed that humans were instinctively selfish and prone to hedonism. Only a human’s instinct for survival is stronger than his evil inclinations. As a consequence, humans choose to live collectively and must create, out of necessity, a social contract or set of rules and regulations to control their evil impulses and promote their mutual protection. The alternative is anarchy and chaos. When an individual violates the social contract, the community must impose a punishment that is sufficiently harsh to deter both the offender and other potential offenders within the community. The community chooses one or more among them to enforce the contract. In the modern context, the legislature, as elected representatives of the community, enacts the criminal laws that constitute the social contract. They also determine what sanctions are necessary to deter lawbreaking and promote law and order. Police and prosecutors enforce the social contract. Judges ensure the enforcement is done fairly.

It would subsequently be my experience that most veteran prosecutors were Hobbesian at heart. They tend to have a somewhat pessimistic view of human nature and a belief that vigorous enforcement of the social contract is necessary to prevent the triumph of anarchy and chaos. With such a mindset, the prosecution function is viewed as being of the utmost societal priority.

It was with this intellectual experience that I entered the University of Colorado Law School in the fall of 1974. Over the next three years, I would be exposed to many areas of the law. But I would read or hear virtually nothing that would encourage me to become a prosecutor. My criminal law–related courses uniformly glamorized the defense function and negatively stereotyped police and prosecutors. Defense attorneys helped free the innocent and protected defendant’s constitutional rights from government oppression. Prosecutors were portrayed, in their best light, as a necessary evil prone to overzealousness. My criminal law, criminal procedure, and constitutional law professors had very little practical experience and none had been a prosecutor.

In defense of the University of Colorado Law School, I’m certain my experience was not unusual. I’ve subsequently found that most law schools, particularly the elite ones, are bastions of liberal thought, and most of the students are content with that. It’s only in the past two decades that I’ve seen some significant push back, primarily through the work of the Federalist Society. Most of my law school classmates had spent the last several years protesting the Vietnam War and enthusiastically embracing the lack of inhibition that characterized the era. I was definitely among the dullest and most politically conservative elements of the law school. So it’s not surprising that I learned much more about the practical realities of the law outside of the law school environment.

Each summer during law school, I searched for opportunities to get practical experience. The summer after my first year, I worked as a legal editor for Shepard’s Citations Service. A neighbor was the editor in chief and helped me secure the job. While I learned a lot of legal terminology and read hundreds of appellate cases, it was uninspiring work. I thought I wanted to be a trial lawyer but had very little notion of how to go about it. My mother had died suddenly during my first year of law school, and, with both of my parents dead, I had very few contacts who could assist me. At Christmas break during my second year, I sought the advice of a state trial court judge who attended my parish church. He strongly recommended I contact the local district attorney’s office and seek a summer internship. There’s no better experience, he said. He gave me the name of the top assistant district attorney. That led to an unpaid internship the following summer. I had to work in the landscaping business on Saturdays and Sundays to help make ends meet. During my third year of law school, I was able to continue my internship at the district attorney’s office and receive three hours of credit. I was required to meet with an assigned professor once a month to discuss the work I was doing and have him review my written work