Judge Pollak on the Eastern District of Pennsylvania has issued an opinion that is remarkable. He granted a new trial based on impermissible vouching by the prosecutor during closing arguments, and, as I read it, the prosecutor basically not being a very good guy. Check the opinion out here. [Note – Impermissible vouching is when a prosecutor tells the jury that a witness is believable based on facts outside of the evidence at trial]
Let me say, at the outset, that Judge Pollak rocks.
There are two remarkable things about this opinion. First, Judge Pollak addresses what is too often a favorite argument of prosecutors – that criminal defense lawyers are slick liars who are paid to confuse juries, unlike the gentlemen and women in the U.S. Attorney’s office who are completely lacking in self-interest (which is why AUSAs tend to not be ambitious; notice how they almost never pursue a later career in politics).
Judge Pollak noted that
[T]he prosecutor accused [the defendant]’s counsel of going “beyond the pale” in suggesting that the government was concealing the truth from the jury by failing to provide telephone records . . . and by “accusing an honorable” officer of testifying untruthfully.
I would wager that any reasonably experienced criminal defense lawyer has heard this argument – how dare the lawyer challenge a law enforcement witness! Worse are two stories the prosecutor told in his rebuttal argument:
I’m reminded by [defense] counsel’s argument of something that occurred to me, not that long ago. I ran into a defense attorney who I knew and was friends with, from years gone by, and he was about to close to a jury early in the day. I said, hey, Brian, can I buy you lunch? He said, don’t wait, it might take me a while to confuse the issue.
Apparently worried that this did not clearly enough convey his contempt for the criminal defense bar, the prosecutor continued:
At this moment, I’m reminded of a discussion I had outside of a courtroom one time, where I was trying to persuade a number of people, and I was interrupted by my opponent, my adversary in the argument. And eventually, after his second or third time, he said, hey, shut up, Joe you’re making sense.
Somewhere a nightclub in Vegas is softly weeping.
If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.
Judge Pollak’s response to what he called the prosecutor’s “drumbeat of derision” of defense counsel, is nice:
By anecdote and innuendo, criminal defense lawyers were portrayed for the jury as persons whose expected and habitual professional role is to mislead the jury by distorting, or hiding, the truth through a criminal defense process that encourages such deception. For counsel for the United States to show such disrespect and, indeed, disdain for crucial ingredients of constitutional processes developed over centuries was inexcusable.
Judge Pollak is, of course, right. It’s sad that a federal prosecutor had to be reminded that making fun of criminal defense lawyers to a jury is not appropriate, but not terribly surprising.
Second, though, are Judge Pollak’s remarks about the failures of the trial judge in this case, who was, as one would expect, himself:
A reader of this transcript could well say that a prosecutor behaving in this fashion should have been called to account, early and often, by the judge. Such criticism would be appropriate. In reading over the transcript I found myself, at many points, troubled that I had not stepped in and directed the prosecutor to cease behaving in a fashion signally inappropriate for a government’s lawyer.
It’s a hard thing to admit you messed up. It’s easy for someone, especially a federal judge, to avoid doing it when doing so would be a pretty easy thing.
Kudos to Judge Pollak, both for standing up for criminal defense lawyers, and having the stuff to publicly admit his own mistake.