Today a 2-1 panel of the Eighth Circuit Court of Appeals reversed a conviction for prosecutorial misconduct. The misconduct concerned an improper closing argument:
[The prosecutor said] "Mr. Moss is a good defense attorney, tries to get you to focus your attention over here when what really is important is right in front of you. It’s all smoke and mirrors." ... The government continued to make similar comments about Mr. Moss later in its rebuttal argument, stating that "Mr. Moss wants to distract you and tell you about all this other evidence that’s not important," and that issues that Mr. Moss had raised about who had owned the gun in question were a "red herring." The government also commented that "Mr. Moss needs to make sure that they get their stories straight" ("they" presumably referred to Mr. Moss and Mr. Holmes), and that the jury should "look at Mr. Moss's story. That's why I said he’s got to get his stories straight."
We think that these various comments referring personally to Mr. Moss and the necessity for Mr. Moss to "get his stories straight," taken as a whole and in the context of the rebuttal argument, show that the government attorney was accusing defense counsel of conspiring with the defendant to fabricate testimony. These types of statements are highly improper because they improperly encourage the jury to focus on the conduct and role of Mr. Holmes’s attorney rather than on the evidence of Mr. Holmes’s guilt. Such personal, unsubstantiated attacks on the character and ethics of opposing counsel have no place in the trial of any criminal or civil case.
United States v. Holmes, No. 04-1007, slip op. at 6-7 (8th Cir. July 7, 2005).
Judge Morris Shepherd Arnold, my favorite federal appeals court judge, broke my heart. Dissenting, he wrote:
There is nothing in this case to differentiate it from the scores, perhaps hundreds of cases that have routinely come before us in the last thirty or forty years in which an identical argument has been rejected out of hand. This counsels more caution than the court employs in the present circumstances.
Id. at 12. In other words, "Since we've let the prosecutor slide all these years, we should continue to do so." Well, okay, he didn't break my heart. I'm not sure the prosecutor's closing argument, full of hot air though it was, amounted to prosecutorial misconduct. Closing arguments are heated. Here, the prosecutor merely blew off a little steam.
But what do you think? Was the panel correct that "Such statements are improper because a prosecutor's comment carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence"?