Prosecutorial Misconduct

The Ninth Circuit vacated a defendant’s conviction for importing drugs based on the prosecutor’s statements in closing regarding the standard of proving guilt beyond a reasonable doubt. The Court held that the prosecutor’s comparison of the standard to the confidence a person might need to have in eating a meal without fear of sickness or traveling to court without worrying about a car accident mischaracterized and “trivialized” the standard and caused substantial prejudice.

The Second Circuit remanded a case to give the defendants an opportunity to file post-conviction motions based on the Government’s alleged violation of Brady v. Maryland. The Court vacated a protective order previously obtained ex parte by the DOJ, disclosed the documents to the defense as new evidence, and remanded for the district court to determine if a new trial was warranted.

A case involving egregious prosecutor misconduct finally ended with a written opinion by the trial judge referring the prosecutors for investigation by the DOJ’s Office of Professional Responsibility. The Government had failed to disclose an exculpatory document until the middle of trial, where it produced a document dump and did not inform the defense of the new evidence, and emails between prosecutors showed they planned to “bury it” and lied to the court.

The Eleventh Circuit affirmed a defendant’s conviction and sentence. The Court held that the prosecutor did not commit plain error during closing arguments when they incorrectly stated that the defendant had stipulated his guilt as to one of the counts in the indictment, as opposed to just one element of that count, reasoning that the full context allowed the jury to infer the stipulation only applied to an element of the count. The Court also held that, notwithstanding the Supreme Court’s decision in Packingham v. North Carolina, a defendant’s condition of supervised release prohibiting internet access except for work and pre-approved purposes is not unconstitutional even if the defendant’s term of supervised release is for life.

Recent legislation called the Due Process Protections Act amended Rule 5 of the Federal Rules of Criminal Procedure. The Rule now requires district courts to issue orders at the initial appearance in every criminal case that reminds prosecutors of their obligations under Brady, lists potential consequences for violations, and sets deadlines for compliance.

The Court held that the double jeopardy clause did not bar the Government from retrying the defendant where the prosecution did not “coax” the defendant into requesting a mistrial at his first trial. Despite the fact that the prosecution had repeatedly and obviously violated the defendant’s right to confrontation of witnesses at that trial, the district court did not clearly err in finding that the prosecutor had not intended to lure the defendant into requesting a mistrial, citing the strength of the prosecutor’s case and the prosecution consistently arguing that the confrontation clause did not apply.

The Court vacated the defendant’s sentence and ordered that he be re-sentenced in front of another judge, holding that the Government breached the plea agreement when it argued for a sentence within the Guidelines range that was calculated by the sentencing court and that was higher than the range anticipated by the plea agreement. The plea agreement obligated the Government to argue for a sentence within the range based on the parties’ stipulations in the plea agreement.

In a marijuana farm case, the Court held that law enforcement did not exceed the scope of a permissible knock-and-talk when they returned to the defendant’s house with other narcotics officers after smelling marijuana at the property earlier in the day, as an officer’s subjective intent is irrelevant. The Court also affirmed the district court’s denial of the defendant’s motion to dismiss the marijuana charges based on the Obama-era “Cole memo” directing prosecutors not to prosecute marijuana cases in states where marijuana is legal.

Curtis Flowers was tried six separate times for the same murder by the same prosecutor. Several of his convictions were vacated by the Mississippi Supreme Court based on findings that the State engaged in prosecutorial misconduct and used it peremptory strikes on the basis of race in violation of Batson v. Kentucky. After his sixth trial, in which the State struck five black jurors and allowed one black juror to be seated, Flowers was convicted.