V OLUME 51 / N UMBER 4 • S EPTEMBER 2018

A P UBLICATION OF THE N ATIONAL D ISTRICT A TTORNEYS A SSOCIATION The PPPRRROOOSSSEEECCCUUUTTTOOORRR

— IN THIS ISSUE — BROWSER, THE CYBERDOG CHALLENGES FACING RURAL PROSECUTORS WE CAN DO BETTER: CREATING A WORKPLACE SEXUAL MISCONDUCT TASK FORCE IN THE ERA OF #METOO MISSING IN ACTION: WOMEN ATTORNEYS IN THE COURTROOM Wa yne A. Jo rdon & Judge Sandra Grisham 2018 National Courses

Office Administration Mental Health September 10–14, Phoenix, AZ November 5–7, Myrtle Beach, SC

Prosecuting Drug Cases Forensic Evidence October 1–3, Salt Lake City, UT December 6–8, Albuquerque, NM

Domestic Violence October 29–November 2, Long Beach, CA

REGIONAL OPIOID TRAININGS

Dallas, – September 10 Portland, Oregon – November 5 Salem, Massachusetts – September 17 Atlanta, Georgia – November 13 Indianapolis, Indiana – October 10 Phoenix, Arizona – December 10 Omaha, Nebraska – October 15

To register or obtain additional information about a course, see our website: www.ndaa.org National District Attorneys Association, Arlington, VA / 703.549.9222 / 703.836.3195 fax

2 F EBRUARY / 2018 V OLUME 51 / N UMBER 4 • S EPTEMBER 2018

APUBLICATION OF THE N ATIONAL D ISTRICT A TTORNEYS A SSOCIATION The PPPRRROOOSSSEEECCCUUUTTTOOORRR

Contact NDAA ROWSER THE YBERDOG The Prosecutor, ISS No. 0027-6383, B , C National District Attorneys 8 Association. Views expressed in the If you need to contact a B Y S TEPHEN J. R ICE articles in this publication are those staff member of NDAA, of the authors and do not please use the list of necessarily represent the views of the National District Attorneys names, numbers and CHALLENGES FACING RURAL PROSECUTORS Association. The Prosecutor is email addresses below. published by NDAA for its members B Y E LIZABETH R. G EBERT as part of their member services. Address all correspondence about 11 subscriptions, undeliverable copies NDAA Headquarters 703.549.9222 and changes of address to: E AN O ETTER REATING A ORKPLACE [email protected] or mail to: W C D B : C W Erin Carr, Executive Director Director of Membership Nelson O. Bunn, Jr. SEXUAL MISCONDUCT TASK FORCE IN THE ERA OF and Marketing, [email protected] 14 NDAA, #M ETOO 1400 Crystal Drive, Suite 330 Chief Operating Officer Arlington, VA 22202 Christine Mica B Y CARYN A. D ATZ 703.549.9222, fax 703.836.3195. [email protected] Visit NDAA at: http://www.ndaa.org.

Finance Advertising Agnita Kote MISSING IN ACTION : W OMEN ATTORNEYS IN THE [email protected] 178 COURTROOM NDAA encourages its members to support the Policy, Government & B Y E. N ICOLE M ANNING AND M ICHELLE S. G ARCIA advertisers in The Prosecutor. Legislative Affairs They help to make this Frank Russo publication possible. For [email protected] information about advertising rates or to place an ad in The Prosecutor , please contact Erin Membership & Marketing Carr, Director of Member- Erin Carr 20 ship and Marketing , at [email protected] [email protected] or 703-519-1644 . Conferences Stephanie (Turner) Weston [email protected] Questions or Concerns

Editor of The Prosecutor Erin Carr I N E VERY I SSUE [email protected] Nelson O. Bunn, Jr. 703-519-1644 [email protected] 2 National Courses 3 Contact NDAA National Courses 4 Roster of Officers & Board Members Editorial Staff Candace Mosley 6 View from the Hill [email protected] Executive Director Nelson O. Bunn, Jr. Kristi Browning [email protected] [email protected] Art Director ABOUT THE COVER Stephen Hall National Traffic Law Center The historic Morris County Courthouse was built in 1827 and is considered among the finest exam - KOTA Design Tom Kimball ples of Federal-style public buildings in New Jersey. Notable features include a gilded domed cupola [email protected] with belfry, a tympanum supporting a recently restored 1828 statue of Justice, and the original interior Articles of Courtroom Number One. Notable cases heard here include the Antoine LeBlanc murder trial in 1833, the appeal trial of The Prosecutor encourages its civil rights activist LeRoi Jones in 1967, and the 1976 Karen Ann Quinlan right to die opinion. readers to submit articles of The Morris County Courthouse was placed on the New Jersey Register of Historic Places and interest to prosecutors for the National Register of Historic Places in 1977. possible publication in the magazine. Send articles to —Peg Shultz Nelson Bunn, Archivist/Acting Director, Morris County Heritage Commission [email protected].

T HE P ROSECUTOR 3 ROSTof OEfficeR rs and Board Members 2018–2019 President Vice Presidents Directors-at-Large Associate Directors JONATHAN W. BLODGETT 1, 2 DARCEL CLARK John Flynn DEBRA B. A RMANINI District Attorney District Attorney District Attorney First Assistant Prosecuting Salem, Massachusetts Bronx, New York Buffalo, New York Attorney President-elect TIMOTHY J. C RUZ 1 MICHAEL O’K EEFE 2 Dayton, Ohio 1 DUFFIE STONE 1 District Attorney District Attorney MARY ASHLEY Solicitor Plymouth, Massachusetts Barnstable, Massachusetts Assistant District Attorney 1 San Bernardino, Bluffton, South Carolina KEITH KANESHIRO SONIA PAQUET California Prosecuting Attorney Deputy Chief Prosecutor Chairman of the Board Honolulu, Hawaii Quebec City, Canada DAVID C. B ROWN MICHAEL O. F REEMAN 1 Chief Deputy County BILL MONTGOMERY 1 ANNE MARIE SCHUBERT County Attorney Attorney County Attorney District Attorney Minneapolis, Minnesota Minneapolis, Minnesota Phoenix, Arizona Sacramento, California JOHN DAWLEY Treasurer/Secretary RAY MORROGH MATT WILBER First Assistant District 1 WILLIAM WEST , J R. Co mmonwealth’s County Attorney Attorney District Attorney Attorney Council Bluffs, Iowa Salem, Massachusetts Fayetteville, North Fairfax, Virginia Prosecutor Coordinators LORI DIGIOSIA Carolina JAMES NAGLE TOM RAYNES Depu ty Commonwealth’s Asst. Treasurer/Secretary Attorney Prosecuting Attorney President, NAPC Stafford, Virginia DAVE ARONBERG Walla Walla, Washington and Executive Director State’s Attorney PETE ORPUT District JOHN D. E VANS West Palm Beach, Florida County Attorney Attorneys’ Council Assistant Prosecuting Stillwater, Minnesota Denver, Colorado Attorney KIMBERLY N. O VERTON Clayton, Missouri Chief Resource Prosecutor RICHARD MINATOYA Cary, North Carolina Deputy Prosecuting NANCY PARR Attorney Commonwealth’s Maui, Hawaii Attorney ELIZABETH ORTIZ 1 Chesapeake, Virginia Executive Director SUMMER STEPHAN APAAC District Attorney Phoenix, AZ San Diego, California GREG TOTTEN 1 District Attorney Ventura, California AMY WEIRICH 1 1 Executive Committee District Attorney 2 Executive Working Group Memphis, Tennessee

TO BE THE VOICE OF AMERICA’S PROSECUTORS

AND TO SUPPORT THEIR EFFORTS TO PROTECT

THE RIGHTS AND SAFETY OF THE PEOPLE.

4 S EPTEMBER / 2018 Past Presidents Past Vice Presidents State Directors MICHAEL O. F REEMAN 1 JAMES C. B ACKSTROM ERIC L. O LSEN MIKE O’D ELL , County Attorney County Attorney Commonwealth’s Attorney GREGG OLSON , Alaska 1 Minneapolis, Minnesota Hastings, Minnesota Stafford, Virginia BILL MONTGOMERY , Arizona TOM TATUM II, Arkansas MICHAEL RAMOS ULIA ATES PETE ORPUT J B DEAN FLIPPO , California District Attorney County Attorney Prosecuting Attorney MICHAEL ROURKE Colorado San Bernardino, California Stillwater, MN Toledo, Ohio GAIL HARDY , Connecticut 1, 2 WILLIAM J. F ITZPATRICK KEVIN J. B AXTER SCOTT PATTERSON MATT DENN , Delaware District Attorney Prosecuting Attorney State’s Attorney BILL CERVONE , Florida Syracuse, New York Sandusky, Ohio Easton, Maryland VIC REYNOLDS , Georgia 2 2 LEE POLIKOV EITH ANESHIRO MICHAEL R. M OORE BRADLEY C. B ERRY K K , Hawaii County Attorney State’s Attorney District Attorney GRANT LOEBS , Idaho Papillion, Nebraska Huron, South Dakota McMinnville, Oregon JOSEPH H. M CMAHON , Illinois MATTHEW REDLE KEITH HENDERSON , Indiana HENRY GARZA DARCEL CLARK County Attorney ALAN OSTERGREN , Iowa District Attorney District Attorney Sheridan, Wyoming MARC BENNETT , Belton, Texas Bronx, New York JOHN P. S ARCONE CLAY M. B ISHOP JR., Kentucky JOSEPH I. C ASSILLY KEVIN COCKRELL County Attorney PAUL D. C ONNICK , J R., Louisiana State’s Attorney County Attorney Des Moines, Iowa STEPHANIE ANDERSON , Maine Bel Air, Maryland Mt. Sterling, Kentucky J. C HARLES SMITH III, Maryland JOHN W. S INQUEFIELD DANIEL CONLEY 2 JOSEPH EARLY , J R., Massachusetts MATHIAS H. H ECK , J R. Special Assistant Attorney District Attorney DAVID LEYTON , Michigan Prosecuting Attorney General Boston, Massachusetts MARK OSTREM , Minnesota Dayton, Ohio Baton Rouge, Louisiana RONNIE L. H ARPER , Mississippi 1 SCOTT HIXSON ROBERT MCCULLOCH MARK A. S ORSAIA Deputy Solicitor ERIC ZAHND , Missouri Prosecuting Attorney Prosecuting Attorney Georgetown, South Carolina MIKE WEBER , Montana Clayton, Missouri Winfield, West Virginia DONALD KLEINE , Nebraska JACKIE LACEY SUMMER STEPHAN 1 BRYCE SHIELDS , Nevada Prosecutor Associations District At torney District Attorney VACANT , New Hampshire WILLIAM JORDEN Los Angel es, California San Diego, California CAMELIA VALDES , New Jersey President 1 BARBARA LAWALL DONALD GALLEGOS , New Mexico National Black Prosecutors HENRY VALDEZ County Attorney DAVID SOARES , New York Association Director, New Mexico Tucson, Arizona WILLIAM WEST , J R., North Carolina 1 Baton Rouge, Louisiana Administrative Office of LEMUEL MARTINEZ District Attorneys BIRCH BURDICK , North Dakota ELIZABETH ORTIZ 1 District Attorney Santa Fe, New Mexico DAVID PHILLIPS , Ohio Executive Director Grants, New Mexico GREG MASHBURN , Oklahoma CYRUS VANCE Arizona Prosecuting BRAD BERRY , Oregon JOSHUA K. M ARQUIS 1 Attorneys Advisory District Attorney District Attorney THOMAS P. H OGAN , Pennsylvania Council New York, New York Astoria, Oregon PETER F. K ILMARTIN , Rhode Island National Association of Justice SHERRI BEVANS WALSH DUFFIE STONE , South Carolina 1 Information Systems Prosecuting Attorney MARK VARGO , South Dakota Phoenix, Arizona Akron, Ohio RUSSELL JOHNSON , Tennessee Past Tresurer/Secretary DAVID ESCAMILLA , Texas 1 SIM GILL , LEMUEL MARTINEZ Distsrict Attorney JAMES A. H UGHES , Grants, New Mexico BRYAN PORTER , Virginia GREG BANKS , Washington DUFFIE STONE JOHN BORD , West Virginia Solicitor THERESA WETZSTEON , Wisconsin Bluffton, South Carolina MICHAEL BLONIGEN , Wyoming

T HE P ROSECUTOR 5 V IEFW rom the Hill

By Frank Russo Director of Government and Legislative Affairs F RANK RUSSO

C ONGRESS ’ S ANNUAL AUGUST RECESS looked different this year with members of the House taking the entire month off as their col - leagues in the Senate returned to work after a one-week break. While both chambers are focused on the looming midterm elections, Senators have spent their time preparing for the confirmation hearing of the pres - ident’s nominee to the Supreme Court, Judge Brett Kavanaugh. Capitol Hill is also gearing up to take on criminal justice reform. After months of silence on the topic, the White House has expressed its support to Congress for a bipartisan compromise that includes sentencing reform and efforts to reduce recidivism rates. NDAA members are encouraged to contact Frank Russo, Director of Government and Legislative Affairs, on any policy or legislative issues that arise. He can be reached at [email protected] or at 703-519-1655. Below is a snapshot and update on recent issues:

C RIMINAL J USTICE & S ENTENCING Senate leadership is currently working towards R EFORM introducing legislation incorporating two bills. The First Step Act , which focuses primarily on reducing • NDAA is communicating with both the White recidivism rates, will be included in the new House and Senate Judiciary Committee staff as legislative package alongside key provisions from Congress attempts to tackle criminal justice reform. the Sentencing Reform and Corrections Act , introduced

Questions or feedback: Please contact Frank Russo at [email protected] or at 703-519-1655.

6 S EPTEMBER / 2018 by Senate Judiciary Chairman Grassley (R-IA) last • NDAA also recently provided input on the END year. Given the Administration’s vocal support, Network Abuse Amendment, introduced by Sen. NDAA will continue to work with stakeholders Schatz (D-HI) in August. The amendment improves and monitor the legislation as it is introduced in the the training and technical capacity of military law Senate. enforcement to confront the misuse of the Department of Defense’s computers, facilities, and D RUG P OLICY online network to access child pornography.

• Sen. Gardner (R-CO) and Sen. Coons (D-DE) V IOLENCE AGAINST WOMAN ACT introduced a bill that would create a clearinghouse (VAWA) within the Drug Enforcement Administration (DEA) to track controlled substance orders across • VAWA is due for reauthorization in September, but the country. Senate staffers are working with the each chamber has a very different approach to the DEA staff and senior leadership to gain the agency’s legislation. Rep. Jackson Lee (D-TX) recently buy in. NDAA does not plan to take a position until released a reauthorization bill in the House with we learn of DEA’s stance on the legislation, support from her Democratic colleagues. NDAA is although no disagreeable provisions have been monitoring the legislation as it has numerous identified. problematic provisions from the law enforcement perspective, including grant restrictions if C HILD A BUSE I SSUES jurisdictions use bench warrants for failure to appear situations. Senate Republicans have been • NDAA continues to support the Targeting Child working with all stakeholders to try and reach a Predators Act introduced by Rep. DeSantis (R-FL) compromise, but it has proven problematic. There last year and is working with stakeholders to ensure is not a clear path forward at this time, but NDAA the legislation is signed into law. The measure, plans to continue engaging with stakeholders and which passed the House last May, remains up for congressional staff. consideration in the Senate. M ISCELLANEOUS • NDAA is providing feedback to Rep. Hice’s (R- GA) office on legislation to improve U.S. • Congress recently passed the 2019 National Immigration and Customs Enforcement’s (ICE) Defense Authorization Act. NDAA was monitoring handling of sex offenders. The Sex Offender the legislation as the Act was re- Registration and Victim Protection Act strengthens introduced in the form of an amendment to the accountability by ensuring the agency defense spending bill. Along with coalition partners, communicates with state and local law enforcement NDAA continues to oppose the Email Privacy Act when releasing convicted sexual offenders from until the concerns of the law enforcement ICE custody. community are addressed.

T HE P ROSECUTOR 7 The P ROSECUTOR Browser, the Cyberdog

S TEPHEN J. R ICE

B Y S TEPHEN J. R ICE

T HINK ABOUT THE LAST TIME you scoured used to prevent devices from overheating. Browser can your house for—say—car keys. Or a cell phone. Or detect the chemical even if the device is contained any other object you needed to proceed about your within a slipper buried under dirty clothes (a real-life day. We’ve all been there, and it’s a frustrating process. example), in the trash, or otherwise buried where one Now imagine you’re searching for something even would least expect it. smaller: a thumb drive, for example. Or a fingernail- Browser and his sniffer have worked with the State’s sized memory card. And imagine you’re searching in a Attorney’s Office since November 2017. The Office’s place you’ve never even been before, such as the home Cyber Division has long provided local law enforce - of someone else. Wouldn’t it be nice to have a “search ment agencies with assistance in cybercrimes policing, engine” for that? having operated a cybercrimes lab that agencies part - At the State’s Attorney’s Office in Lake County, ner with to complete their investigations. Browser is an Illinois, there is just such a search engine, fittingly addition to that lab’s other tools, which mostly consist named “Browser.” But Browser is no product of of highly specialized computers and the highly trained Silicon Valley. Rather, he’s an English Labrador individuals who run them. Browser is thus a “Lab” in Retriever that was trained by Todd Jordan of Indiana, support of a lab: his snout is the four-legged field tool who operates Jordan Detection K-9, LLC. The State’s that helps collect the evidence that is later analyzed in Attorney obtained Browser in cooperation with the the State’s Attorney’s cybercrimes lab. Waukegan Police Department. To date, Browser has accompanied the police on Dogs can be trained to smell all sorts of odors unde - over a dozen search warrants. When searching, the tectable to the human sense of smell. Browser’s capa - police first do their search, and then Browser immedi - bilities are a product of his specialized training and the ately follows. The search warrants are no different than fact that computer circuits contain a particular chem - ones that are used without a dog because unlike some ical that produces a recognizable odor. The chemical is police dogs, which can be used to establish probable

Stephen J. Rice is an Assistant State’s Attorney in the Civil Division of the Lake County State’s Attorney’s Office, Illinois.

8 S EPTEMBER / 2018 Browser, an English Labrador Retriever, works for the cyber division of the Lake County State’s Attorney’s Office, Illinois.

T HE P ROSECUTOR 9 cause, Browser comes to the scene only when a war - non-contraband radios, too. ) rant already exists. When an agency wants to use the dog on a search Browser lives and works exclusively with his han - warrant, it coordinates with Carol to schedule a time dler, Carol Gudbrandsen, who has worked in the (and Carol has, for years, also assisted with preparing State’s Attorney’s Office for eight years and specializes the search warrants.) Because it takes a trained handler as a Cybercrimes Analyst. Carol and Browser work as to properly use Browser, Carol accompanies him on a team: when an agency employs Browser, they are searches and monitors his behaviors. When Browser actually employing the team of Carol and Browser. locates a target item, he either whines or sits without Carol supports Browser at work and outside of it, moving. Electronic devices are then analyzed for evi - which is important, because keeping him trained dence in the cybercrimes lab, where Carol uses spe - requires vigilance. cialized computers that keep forensic protocols of the Carol trains Browser on a daily basis: for Browser, activity. Browser and Carol are also part of the Illinois food is inextricably tied to the search for electronics Internet Crimes Against Children (ICAC) Forensic (much like Pavlov’s dog was conditioned to salivate Task Force and have worked search warrants for other upon hearing a bell). Browser is fed twice a day, and counties in the northern half of Illinois. each time, he must first find electronics before the Much of the work Browser and Carol are involved meal. The effect of this training is that even when in regrettably involves child exploitation. Browser is therefore the second dog in the State’s Attorney’s Office working on behalf of abused children. The other, a yellow lab named Mitch, works in the Office’s Browser lives and works Children’s Advocacy Center, which is where law enforcement agencies bring children for age-appropri - exclusively with his handler, ate interviews. Mitch obviously conducts no inter - Carol Gudbrandsen, who views himself, but rather works with staff members to help put children at ease with what is, unquestionably, has worked in the State’s a disquieting situation. State’s Attorney Michael Nerheim notes that, “Our Attorney’s Office for eight service dogs have been a huge asset to our office by years and specializes as a helping countless victims and their families deal with the trauma associated with victimization, as well as the Cybercrimes Analyst. added stress that the court process often entails.” He adds that “it made perfect sense to add Browser to our team so that we can be even more effective at investi - gating and prosecuting child predators.” Browser roots through someone’s residence, where Like any other employee of the State’s Attorney’s food will typically be present in various places Office, Browser is a daily presence at work. With the (kitchens, trash cans, coffee tables, etc.), Browser is characteristically cheerful disposition of a Lab, Browser conditioned to find the electronics and ignore the appears happy to work for food. He will be annually food. Eating occurs only after the search. Occasionally, re-certified by Jordan Detection K-9. When not work - Browser also searches at the Lake County Jail, where ing or training, Browser is generally engaged in what he is “on the sniff” for contraband electronics that every other similar dog of his type does: bringing joy inmates might possess. (He occasionally finds to those who come into contact with him.

10 S EPTEMBER / 2018 The P ROSECUTOR Challenges Facing Rural Prosecutors

E LIZABETH R. G EBERT

B Y E LIZABETH R. G EBERT

L IFE AS A PROSECUTOR in a rural setting is 30 to 60 cases, I will also have to cover juvenile profoundly and uniquely rewarding. I ran for elected court all morning. I pull up my Outlook calendar office in a small county knowing full well that there and discover that juvenile court is scheduled during would be limited resources, but also expecting that status conferences, so I’m double-booked for most agency partners and members of the community of the morning. Make that triple-booked as I still would be supportive of my efforts. I have not been have to write those complaints. Then I get out of bed. disappointed. That is merely a snapshot of nearly every day of my life as the District Attorney in a county of approximately 19,000 permanent residents in T HE S TARK R EALITY Northern Wisconsin. The vacation properties on the It’s Monday morning, my eyes snap open at 6:00 beautiful lakes that fill my county at least double that a.m. and I immediately open my email on my phone number with weekend, summer, and holiday occu - to see how many people are newly in custody from pants. We have two law enforcement agencies: the the weekend and will need court appearances by police department for the county seat, the City of 1:15 p.m. Six. My mind immediately starts process - Antigo, and one for the rest of the county. On week - ing what I will need to do in order to read reports, nights, we can have as few as two officers covering make charging decisions, review criminal records, the city and two deputies covering the entire coun - and write and file their criminal complaints by ty. On the healthcare side when I was elected in 11:00 a.m. Then I remember that my one and only November of 2016, there were no Alcohol and half-time assistant district attorney is on vacation Other Drug Abuse (AODA) treatment options in this week. That means that in addition to my usual the county except for 1-on-1 counseling, which is 10:00 a.m. status conferences, usually adding up to the lowest level of that type of treatment. On the

Elizabeth R. Gebert is the District Attorney for Langlade County, Wisconsin.

T HE P ROSECUTOR 11 public safety side, our county is facing a crisis situa - I started writing this with the intention of laying tion with understaffing in the District Attorney’s out all of the challenges that come from being a Office and the two law enforcement agencies that is prosecutor in a rural county and leaving it at that, reaching a fever pitch. but I find myself doing what I do every day: I’m Our limited resources have been brought into looking at the challenges and find myself instead harsh focus as we attempt to respond to an over - focusing on the possibilities. Rural practice presents whelming methamphetamine crisis. It is crippling a unique opportunity to make a real difference in the court system, with one judge and one full-time the lives of everyday people and to try new district attorney on track to handle over 900 new approaches to tackle ongoing issues. criminal cases in the most recent 12-month period. It is crippling the social services/foster care system, N EARLY E VERY C HALLENGE = A N as the majority of the meth offenders also have small O PPORTUNITY children. It is crippling the health care system, where these individuals receive frequent emergency or I have found that people respond really well to a urgent care treatment for the myriad negative health motivated, thorough, sincere leader. I strive to be effects that accompany chronic meth use. that person every day. Further, I have found that

Our limited resources have been brought into harsh focus as we attempt to respond to an overwhelming methamphetamine crisis. It is crippling the court system, with one judge and one full-time district attorney on track to handle over 900 new criminal cases in the most recent 12-month period.

Langlade County, Wisconsin is home for many potato farms like the Schroeder Brother’s Farms pictured above and the Wisconsin Potato and Vegetable Growers Association, based in Antigo.

12 S EPTEMBER / 2018 there are others who are committed to problem- S HOWING U P M AKES A D IFFERENCE solving, who are eager to help be part of the solu - tion. The primary example I point to is our county’s In addition to our effort to engage the broader expanded efforts in the area of out-patient drug community, I have committed myself to being pre - treatment. Residents of the county previously were sent, whenever possible, for the monthly county required to travel out of the county for any sort of board meeting and for the public safety committee drug treatment, except 1-on-1 AODA counseling. meeting. I generally cannot attend the entire meet - Through a series of important conversations and ing, and often am very late in arriving, as I am usu - hard work by a core group of dedicated people, we ally double-booked with the court. But even going have now established both Day Treatment and for only a portion of the meetings has paid off Intensive Outpatient Treatment programs in the immensely. The county board members understand county. It took a little more than a year to get these my limited availability and don’t expect me to attend programs going, which in the life of county govern - every board and committee meeting. At the same ment is fast. time, they recognize me and have started seeking me out for my input. Of course, that takes time, but it is encouraging to be asked! L IMITED R ESOURCES = T HINKING Two months ago when I approached the county O UTSIDE OF THE B OX E VERY DAY public safety committee, my oversight committee, to The reality is that for various reasons, none of fund another full-time prosecutor for my office, I these systems will receive a huge influx of cash or received a significant positive response. Knowing staff any time soon. Starting from that position, we each other, educating county board members on the have been working to take a look at the resources role of my office, and communicating the issues that we do have to find new, sometimes unorthodox the county is facing in regard to public safety has led ways of achieving our mutual goals. The advantage to excellent support from the county board. of working in a small county is that the stakeholders Accomplishing this level of familiarity with all of the all know each other and interact with each other on county board members in such a short period of a regular basis. On the ground, this means that often time in a larger county would likely be more chal - times a conversation involving all of the interested lenging. parties leads to real and immediate results. This year, I suggested expanding our county P ROFESSIONAL F ULFILLMENT response to methamphetamine by taking it to the community through a series of community gather - There are absolutely days, many days, where I go ings. Those gatherings have expanded and pulled in home completely exhausted and feeling over - volunteers and new leaders, increasing the impact of whelmed, like the problems our county faces are our efforts. New efforts to establish mentoring pro - simply too big for us to address. But in the bigger grams, increase public awareness, and support indi - picture, I feel inspired and fulfilled by the amazing viduals in their sobriety are developing. It is exciting opportunities I have had and the real successes that to see how others want, and are ready, to get we have already achieved. Being a prosecutor in a involved in the response. rural setting is tough work. And so very rewarding.

T HE P ROSECUTOR 13 The P ROSECUTOR We Can Do Better: Creating a Workplace Sexual Misconduct

Task Force in the Era of CARYN A. DATZ

B Y C ARYN A. D ATZ

OVER THE PAST YEAR , our collective con - of workplace sexual assault and harassment, bravely sciousness has been awakened by appalling accounts told by women and men across the nation. These

Caryn A. Datz is the Chief Trial Deputy of the Sexual Assault Unit, serving the 20th Judicial District in Boulder, Colorado.

14 S EPTEMBER / 2018 revelations highlight realities I have long known as a this discussion and this opportunity to develop a sex crimes prosecutor: no one is deserving of this better culture around sexual conduct. We must help conduct, these actions are born of an exploitation of create a culture that prevents sexual harassment and power, and we must do more to prevent and address sexual assault, encourages victims to come forward, this hidden epidemic. No person can ever reach and condemns retaliation. their full potential if their work or school environ - Under the leadership of District Attorney ment is not safe. Michael Dougherty, we have taken action to reduce At the District Attorney’s Office for the 20th the number of sex offenses in our community Judicial District in Boulder, Colorado, we have an through the creation of a Workplace Sexual outstanding, nationally recognized Sexual Assault Misconduct Task Force. The Task Force invites gov - Unit. I am proud to serve as its Chief Deputy ernment agencies, area employers, educational insti - District Attorney. Every day, our prosecutors, inves - tutions, and victim advocates to meet regularly to tigators, and victim advocates seek to do justice in discuss and implement methods for reducing sexual cases involving sexual offenses committed against harassment and violence occurring at work and on both children and adults. Through this work, one campus. glaring pattern stands out: the hesitation of victims One of the central goals of the Task Force is to to come forward and publicly report their experi - help employers and local schools develop trainings, ence. These actions thrive in the silence created protocols and methods that quickly and comprehen - through fear. We have seen firsthand the circum - sively address reported harassment or misconduct. stances that can lead to rape, stalking and harassment, The Task Force also will provide a forum to discuss including among co-workers and fellow students. best practices in areas such as supporting victims, Over the years, many of the sex assault cases we have protections for students and employees, fair processes prosecuted might have been prevented or resolved for the accused, and the role of social media as a with earlier intervention. means of harassment and retaliation. Outreach The #MeToo movement has made clear how efforts that inform employers, employees and stu - common sexual assault and harassment is in the dents about sexual harassment and assault and also workplace where there are often imbalances of make resources available can both reduce incidents power. Often these are battles quietly fought by the and increase reporting. victim, and yet loudly defended by the offender On June 19, 2018 our office held its first meeting through acts of retaliation. As prosecutors, we have a of the Workplace Sexual Misconduct Task Force. unique and compelling role in combatting sexual Gathered at this meeting were staff from the District harassment and assault. Given the current climate, Attorney’s Office, including deputy district attor - our offices should play a leading role in helping to neys, investigators and victim advocates. Also present prevent offenses and to build the best systems for were city and county human resources officers, responding to complaints. The members of NDAA community-based victim advocates, advocates for are positioned to lead their communities through the immigrant and LGBTQ communities, represen -

T HE P ROSECUTOR 15 tatives from the University of Colorado and the 1. Create buzz. University of Denver, as well as members of the Get the word out to your stakeholders and com - business community. At this meeting, we made munity partners that you intend to form a work - introductions, discussed the mission of the Task place sexual misconduct task force. Draft a mission Force, and mapped out the short-term and long- statement and explanation of the task force and its term goals for the Task Force. At the close of the purpose to distribute among interested parties. meeting, we invited attendees to select a subcom - Inform the local media and write a guest opinion to mittee that they would volunteer to serve on in the help bring attention to your efforts. areas of Resources and Materials, Events and Community Outreach, and Legislation. We will 2. Create an email group list and send meet again to discuss presentation materials that we invitations. have compiled so that we can begin to present train - Send an invitation out to your desired attendees. ings for employers and employee in the business Focus on governmental agencies, the business com - community. munity, and local educational institutions. Reach out If your jurisdiction contemplates forming its own also to victim advocacy agencies and advocates for Workplace Sexual Misconduct Task Force, the fol - the at-risk, LGBTQ and immigrant communities. lowing are concrete steps you can take to ensure a Keep the names and contact information in one smooth roll-out: place for easier flow of communication. Draw upon your contacts, reach out to stakeholders, and build a coalition from the leaders in your community. Remember to invite attorneys with experience in civil law to speak to the liabilities and remedies available on the civil side.

3. Call a meeting. Gather as a group in person to build rapport. Send out an organized agenda in advance. Use the agenda as a framework to outline goals, define terms and create future tasks. Keep the meeting on point and prioritize short-term goals while identifying long-term on-going projects.

4. Form Subcommittees to focus on specific tasks. Establish subcommittees and encourage members to participate in at least one of the following (and any others you chose to create):

• Create one group to immediately begin work on gathering and designing presentation materials. If

16 S EPTEMBER / 2018 lobbying groups to have allies in the proposal of new legislation, attend session meetings at the leg - We need to improve, not islature, and communicate to the Task Force potential bills under consideration during the ses - roll back, our collective sion.

response to allegations of After your initial meeting, make sure that sub - committee members are connected and can com - sexual misconduct. As municate easily so that committee work does not District Attorney Offices stall in between meetings. and as members of the 5. Create and Provide Presentations. Identify your intended audience for outreach — NDAA, we can and are you speaking to employers or employees or both? A school or a business? Consider your audi - should do more in this ence, and whether you need to adapt your presenta - tion to that audience. Be cognizant of the need for area for our communities. and importance of bilingual presentations as well. Consider having several potential presentations available for the immigration, at-risk and LGBTQ communities. Be flexible in your presentations and you will present in your community, you will need be prepared to adapt to the needs of your commu - brochures or palm cards for distribution. Consider nity as they appear. compiling materials for a reference “toolkit” con - sisting of sample policies and victim assistance Significant progress has been made in combatting resources to easily distribute upon request to sexual violence and harassment. Changes in legisla - employers and/or employees. Consider also a tion and community and law enforcement response PowerPoint or formatted lesson plan for consisten - have been positive steps. But, the #MeToo move - cy in the presentation of materials while out in the ment reminds us that there is still a long way to go. community. We need to improve, not roll back, our collective response to allegations of sexual misconduct. As • Create another group to work on community out - District Attorney Offices and as members of NDAA, reach and to book speaking engagements. This we can and should do more in this area for our com - group should focus on identifying an industry or munities. It is critical to vigorously prosecute sexual group in need of a presentation. This group should assaults, but it is equally important to reduce the also be responsible for advertising the work of the number of offenses being committed. With honest, Task Force and coordinating a schedule of events. proactive approaches to these issues such as a Workplace Sexual Misconduct Task Force, we can • Create a third group to work on legislative issues. make our workplaces and campuses safer for every - This group should align themselves with other one. Our collective future depends on it.

T HE P ROSECUTOR 17 The P ROSECUTOR Missing in Action: Women Attorneys in

E. N ICOLE M ICHELLE S. the Courtroom M ANNING G ARCIA

B Y E. N ICOLE M ANNING AND M ICHELLE S. G ARCIA

C OURTROOMS remain a center of power for the room also appears to occur at numbers far lower legal field and the representation of gender in the than the law school graduation rates would suggest. 3 courtroom is an equally powerful statement on the This article examines the national demographic position of women within the legal profession. 1 A trends of women attorneys compared to women in strange phenomenon appears to be occurring in the courtroom. Specifically, this survey analyzed courtrooms across the country; although the per - studies on the quantity of women litigators in three centage of women practicing law has gradually varied locations (snapshots from New York, New increased over time, women represent only a rela - Mexico, and the Northern District of Illinois), self- tively static and small percentage of the courtroom reported statistics from American Bar Association, attorney population. 2 Gender diversity in courtroom and the national trends on diversity in law firms settings remain at low numbers compared to the compared to the raw numbers of law school gradu - larger pool of women attorneys in the legal profes - ates. Finally, this article concludes with some obser - sion overall. The percentage of women in the court - vations on the data trends involving women attor -

1 See e.g, What It Takes to Be a Trial Lawyer If You’re Not a Man , Lara Bazelon, THE Achieving Equality in the Courtroom and in ADR, Report of the New ATLANTIC , September 2018. York State Bar Association” (November 2017), available at 2 The authors of First Chairs at Trial More Women Needs Seats at the Table con - https://www.nysba.org/WomensTaskForceReport/ . cluded from studying the District of North Illinois that “It is evident that 3 See , 2016 reported numbers of 51% women attendees in law schools from the women are consistently underrepresented in lead counsel roles in all but a ABA and New York Times article, Women Make Up Majority of U.S. Law few settings and for all but a few types of cases.” available at Students for First Time . Available at https://www.americanbar.org/content/dam/aba/marketing/women/first_c https://www.nytimes.com/2016/12/16/business/dealbook/women-major - hairs2015.authcheckdam.pdf at 13; cf the New York State most recent sta - ity-of-us-law-students-first-time.html tistics showing women attorneys in court appearing on only 24.4% and 26.9% of federal and state court cases respectively, “If Not Now, When?

E. Nicole Manning and Michelle S. Garcia are Assistant District Attorneys, serving the First Judicial District Attorney’s Office in Santa Fe, New Mexico.

18 S EPTEMBER / 2018 neys overall to the more specialized number of ...increasing numbers of women attorneys in the courtroom. women graduates have made little impact (less than a 1% F RAMING THE DATA In the late 1980’s and early 1990’s the number of difference increase) in the women attending and graduating from law schools rose and began to come close to equaling the total overall numbers of women in number of male law students and graduates. 4 To some legal observers this trend suggested that gen - law firms. der parity across the legal profession might be achieved simply due to the overwhelming numbers of newly minted women attorneys who would achieve success at all levels of the legal profession. 5 As detailed below, the current reality is more compli - L AW F IRMS Between 2006 and 2016, women’s representation cated and remains far from this imagined future. Few in law firms has increased, but only by a mere legal organizations have consistently collected and 0.92%. 8 The representation of women graduating reported data on the gender makeup of their mem - law school in the same time frame has increased bership and even fewer have maintained data on 2.71%. These increasing numbers of women gradu - similar populations over time to allow for cross- ates have made little impact (less than a 1% differ - comparisons over time. 6 Of those organizations, the ence increase) in the overall numbers of women in American Bar Association (ABA) has conducted a law firms. In fact, compared with the 2009 numbers, number of surveys and also developed representative there is an even greater gap, where the difference samples of gender representation at various levels of between graduates and law school representation the legal profession. The comparison of the available was a difference of 12.86%, there is now a difference ABA datasets to statistics collected by other profes - of 14.65%. Women are representing a higher per - sional organizations has necessarily involved the centage of the legal graduates than they were in normalization of comparisons despite clear differ - 2009, yet the gap between law degree representation ences in the raw number of responses and data and law firm representation has grown. points. 7

4 ibid. Data Normalization, Alan Dutka and Howard Hansen (1989). Where possi - 5 For a more detailed discussion of this argument and its counterargument, see, ble, this article has prioritized the larger datasets collected by the ABA over Women Lawyers: Rewriting the Rules by Mona Harrington, 1995. less comprehensive statistics with smaller sample sizes or reported responses. 6 The authors actively sought additional survey and longitudinal data from a 8 2016 Report on Diversity in U.S. Law Firms, National Association for Law diversity of sources but like the authors of First Chairs at Trial More Placement, January, 2017, Table 1, available at Women Need Seats at the Table: A Research Report on the Participation www.nalp.org/uploads/2016NALPReportonDiversityinUSLawFirms.pdf . of Women Lawyers as Lead Counsel and Trial Counsel in Litigation, have concluded that a dearth of research exists nationally and within state juris - dictions. 7 For a more complete discussion of data normalization, see, Fundamentals of

T HE P ROSECUTOR 19 9

Within the legal profession, one proxy for the sta - men. By contrast, men comprise close to 55% of law tus of women attorneys relative to their men coun - associates and a staggering 81.3% of equity law firm terparts has come from the number of women with - partners. 11 in law firms which have traditionally formed the basis of private sector legal jobs and often paid high - S TATE S NAPSHOTS er salaries than government positions. 10 Of the Although datasets for women who appear in 50,909 partners listed in the 2016-2017 NALP courtrooms do not exist for each state jurisdiction, Directory of Legal Employers Report, women rep - three states provide snapshots from three very differ - resented a mere 22.13%. Of the 45,398 associates ent jurisdictions: New York, New Mexico, and listed, women represented over double the popula - Illinois. tion at 45.00%. These numbers show a funneling effect where women are entering law firms as asso - New York ciates in numbers close to the number of men but A recent 2016 survey from the New York State women are failing to make partner at equal rates to Bar Association reported that women attorneys in

9 As expressed from the following, see National Center for Education Statistics, race/ethnicity, and field of study: 2008-09 available at https://nces.ed.gov/pro - Tbl. No. 324.50, Degrees conferred by postsecondary institutions in selected profes - grams/digest/d11/tables/dt11_310.asp . sional fields, by sex of student, control of institution, and field of study: Selected 10 A further discussion of women in law firms, including some proposed solu - years, 1985-86 through 2015-16, avaliable at tions for the retention of women in law firms can be found in White https://nces.ed.gov/programs/digest/d17/tables/dt17_324.50.asp?cur - Paper: Retaining & Advancing Women in National Law Firms by Anna rent=yes ,; Id . at Tbl. No 324.50 Degrees conferred by postsecondary institutions Jaffe,Grace Chediak, Erika Douglas, and Mackenzie Tudor (May 2016). in selected professional fields, by sex of student, control of institution, and field of Available at https://www-cdn.law.stanford.edu/wp- study: Selected years, 1985-86 through 2012-13 available at content/uploads/2016/05/ Women-in-Law-White-Paper-FINAL-May- https://nces.ed.gov/programs/digest/d14/tables/dt14_324.50.asp ; Id at Tbl. 31-2016.pdf No. 309, Degrees conferred by degree-granting institutions in selected professional 11 See also ,NALP Bulletin April 2018 which reported that “Equity partners in fields, by sex, race/ethnicity, and field of study: 2009-10 available at multi-tier law firms continue to be disproportionately white men. New https://nces.ed.gov/programs/digest/d11/tables/dt11_309.asp ; Tbl. 310, Degrees figures from NALP show that in 2017, only 18.7% of equity partners were conferred by degree-granting institutions in selected professional fields, by sex, women and only 6.1% were racial/ethnic minorities.”

20 S EPTEMBER / 2018 New York participated in court at lower rates than must maintain public address information in the their men colleagues. 12 “In New York federal courts, State Bar Directory, not all attorneys identify sub- women attorneys made up 24.4% of all attorneys specialties or areas of practice. Conversely, some who appeared in court, with 23.1% holding the attorneys identify multiple areas position of lead counsel. In New York State courts, Litigation Attorneys that identify a career involving women made up 26.9% of attorneys appearing in litigation. Those women who court and 26.8% of attorneys in the position of lead self-identified as litigation attor - counsel.” 13 The results of this study prompted the neys was a mere 28.86% of liti - New York bar to seek solutions to equalize led roles n Women n Men gation practitioners. 15 in court and ‘speaking opportunities’ for women. 14 Northern District of Illinois New Mexico In 2015, the American Bar Foundation and ABA The authors of this article conducted statistical Commission on Women in the Profession published analysis within New Mexico, focusing on women a study conducted on women in first chair/ lead attorneys and women litigators which concluded counsel positions in the Northern District of that a disproportionately low number of women self Illinois. 16 The study found that women represented identify as litigators. The State Bar of New Mexico only 27% of attorneys that entered an appearance as allows attorneys to self-report information on their a trial attorney. 17 Although the study identified some employment by identifying practice areas, specialties, areas of increased representation for women, the and voluntary membership in practice sections. overall conclusion was that women lag far behind Although all attorneys who practice within the state men in designations as lead counsel or trial counsel

12 “If Not Now, When? Achieving Equality in the Courtroom and in ADR, 16 First Chairs at Trial More Women Need Seats at the Table: A Research Report on Report of the New York State Bar Association” (November 2017), available the Participation of Women Lawyers as Lead Counsel and Trial Counsel in at https://www.nysba.org/WomensTaskForceReport/ see also Litigation , Stephanie Scharf and Roberta Liebenberg (2015) available at https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=26706 https://www.americanbar.org/content/dam/aba/marketing/women/first_ 13 “If Not Now, When? Achieving Equality in the Courtroom and in ADR, chairs2015.authcheckdam.pdf Report of the New York State Bar Association” at 14-15 17 Id . at 10. 14 Ibid. at 20-21. 15 State Bar of New Mexico, Attorney Bar Directory Profiles 2017.

T HE P ROSECUTOR 21 22

across all types of appearances and cases. “As revealed C ONCLUSIONS AND O BSERVATIONS in this study, women are consistently under repre - It is clear that some huge strides towards gender sented in lead counsel positions and in the role equality in the legal profession have been achieved, of trial attorney for all but a few types of particularly in the area of women law school gradu - cases.” 18 ates and entry positions like law firm associates. However, the large numbers of women attorney graduates have failed to translate into greater num - J UDGES AND N ATIONAL G ENDER bers of women in the courtroom by any measure. R EPRESENTATION IN L EGAL Although studies of “speaking” attorneys, first chair P ROFESSION Nationally, the ABA has reported from its 2017 lawyers, trial counsel, and judges presented key dif - publication A Current glance at Women in the Law , that ferences in demographic information the data all the 5,596 women judges make up only 31.1% of all pointed to a similar conclusion- women do not hold state judges in the U.S. 19 The total percentage of positions of power in the courtroom at numbers women ABA members in 2017 totaled 34.6%. 20 equivalent to men. Although more data across state Interestingly, there appears to have been an uptick in lines to measure additional proxies for representation the representation of women on the bench in the like surveys, job descriptions, title, and salary clearly past decade. The National Association of Women needs to be compiled the authors remain optimistic Judges has made note of the representation of that comparison between data sets can yield greater women on state court benches as displayed in the insight into where the legal profession is failing to following graph. 21 achieve equality for women.

18 Ibid . at 4. http://www.abajournal.com/magazine/article/judge_standing_rule_court_ 19 2010 Brennan Center for Justice Report on Improving Judicial Diversity, avail - diversity/news/article/judges_and_the_administrative_state/?icn=sidebar&i able at https://www.brennancenter.org/sites/default/files/legacy/ ci=bottom Improving_Judicial_Diversity_2010.pdf 21 Foster-Long’s Gender Diversity Survey, Forster-Long, Inc. and the National 20 A Current Glance at Women in the Law , January 2017, available at Association of Women Judges, available at https://www.nawj.org/statistics https://www.americanbar.org/content/dam/aba/marketing/women/cur - 22 The authors developed this graph from the data presented by the National rent_glance_statistics_january2017.authcheckdam.pdf see also ,Judges Push for Association of Women Judges. Supra 24. Diverse Voices in Court , ABA Journal, January 2018, available at ,

22 S EPTEMBER / 2018 Luc-Antoine Couturier

Qu ébecCity

Pow Wow de Wendake/Francois Despres

Sainte-Anne-de-Beaupré Shrine/Franc ois-Marie He rault Rue du Cul-de-sac/Stephane Audet/Audet Photo ̧ ́

Parc national de la Jacques-Cartier/Jeff Frenette Photography

INNOVATIONS IN PROSECUTION July 24 – 25, 2019 Hilton Quebéc City, Canada

Join us in Québec City, Canada for this important conference. Prosecutors, investigators, victim advocates, justice stakeholders and all those who work with the prosecution function will benefit tremendously from the educational sessions. SAVE THE DATE! All photos courtesy of Québec City Tourism Office