The issue has come up because a judge is piping mad that a defense lawyer said this in closing:
So . . . the Court instructed you, rightfully so, that you cannot consider the fact that the Congressman didn’t testify. He has an absolute right not to testify and you cannot consider it, but that’s a hard instruction to follow, especially in a case where we’re talking about what’s in his mind, what he knew, what he remembered, and what he understood. And we don’t have to explain the decision not to testify, but I’m going to. And the answer is that he did testify. Remember, most of what we listened to during our, I think, six days of trial were his statements. And the testimony, essentially, that he gave in those recordings was unvarnished,
unprepared, uncounseled. Well, I suppose in D.C. he told the prosecutors what he knew and remembered, and you got to hear that, too. I can’t improve on that. I can’t—his memory is not better today than it was in 2019, so there’s really nothing to add. And so here you are, some of you may be thinking, why didn’t he testify? Why didn’t he explain this? But what do you think would have happened if he got up there on the stand and tried to explain and his memory is worse than it was before and the Government confronts him with the call and asks him to explain it? He would say the same thing as what he said before, this is what I heard, this is what I understood.
Doesn’t seem so bad to me. He said he had an absolute right not to testify and that he already gave his statements. But the judge issued an order to show cause. Here’s the whole order, which is being covered by Meghann Cuniff on Twitter.
I always have to sigh when I see judges getting so angry at defense lawyers. Imagine a prosecutor had actually commented on a defendant’s silence, which happens in courtrooms all the time… the prosecutor would get yelled at for a minute and then nothing. No reversal (harmless), no sanctions (it’s a prosecutor!), etc. Judges typically give prosecutors the benefit of the doubt — it was just a mistake — while defense lawyers get orders to show cause.
In any event, do you think the defense lawyer crossed a line here? His client was convicted, by the way. This order came out after the client was sentenced.
13 comments:
David the posted order isn't showing up, can you re-try?
He did not come close to the line. He told the jury to consider his client’s statements to the prosecutors as his side of the story. Done it many times (although when in state court it’s more like “ when he told the cop those drugs ain’t mine he was telling the truth “).
I do not see the problem here.
Not only doesn't the argument seem improper, the assumption that seemed to piss the judge off so much -- that the defense lawyer took advantage of a prosecutorial limitation by making an argument that the prosecutor couldn't rebut -- is likely wrong as a matter of law. Where a defense lawyer comments on his or her client's silence, United States v. Robinson, 485 U.S. 25 (1988), gives the prosecutor a right to fairly respond. Had the government raised the issue with the Court before rebuttal, it probably could have said something in the moment.
In any event, I'm not aware of any rule that prevents a criminal defense lawyer from addressing his or her client's silence (unlike the government, we aren't bound by the Fifth Amendment), or making arguments based on inferences about why a client might not want to testify. You'd think there should be a bright-line rule, easily citable in the OSC, before a judge threatens a lawyer defending his client from federal criminal charges for statements made in a closing argument. Even if the argument veered across the line of vouching or referring to facts not in evidence -- I don't think it did -- that may be objectionable, but I've never seen that result in sanctions.
In fact, I've seen prosecutors do it regularly, just as they routinely violate the Constitution in other ways. In those cases, it's usually brushed off as unfortunate, but harmless. Maybe in an extraordinary case, a flagrantly-improper closing argument might warrant reversal. But sanctions? I can't think of a case. And to the extent that they exist, I can only imagine sanctions issuing for arguments that grossly and intentionally violate an established Constitutional rule.
I think it is gaslighting to call an out-of-court/deposition statement "testimony" -- something I've seen defense lawyers routinely claim, often in the guise their client "testified" by pleading not guilty and that's all the "testimony" the jury needs to know their side of the case. Testimony is subject to cross-examination. It is the subject which the finder of fact is entitled to draw credibility determinations.
I also think the fact that the attorney thought reasonable minds could disagree (suggesting he pre-meditated on it and didn't have a clear-cut or legal authority based argument) also must have aggravated the judge.
I also think the reference above to "you have their side of the story" either through a not guilty plea or an out-of-court statement is proper argument, but that's because you are not referring to it as testimony.
2:54 You see prosecutors routinely violate the Constitution??!! Back it up, please.
Actually, what is more disturbing is that the judge is requiring the attorney to produce evidence to be used against himself in an order to show cause.
“Fifth” is all he should write back. And stand on his statement in court.
Love the little dictators that get appointed from time to time.
The Judge's order is spot on. Why the AUSA did not jump up sooner and object is baffling. Telling the jury what his client would have said had he testified is way off base and, at least in the 11th Cir. allows for an invited reply. THe AUSA should have shoved that drivel up the Defendant's ass in his rebuttal close.
I think that stating why your client did not testify is fair game. Of course it may invite a prosecutor then stating that he has to rebut your argument as to why the defendant did not testify in his or her rebuttal, then eviscerating the court's instruction on the jury not considering a defendant's silence. The defense then lives with that risk. However, then arguing about what your client "would have said" had he testified would appear to be speculative and not based on admissible evidence. It then invites the prosecutor to then comment on what his cross "would have been" had he testified, also not admissible evidence. Either way, I do not think the defense counsel's conduct is sanctionable in any way.
Even if this was improper, there is a slightly different way of phrasing the same argument that would be fair game. He could refer to the client's statements without arguing it was testimony. So I agree it's harmless.
If you are concerned about making this type of argument for a client, you should not be practicing criminal law defense. Go and do wills and probate instead.
Could he be indicted for obstruction of justice?
A veteran and wily state PD once ( he could only get away with it once) told a jury in his closing statement that as a public defender, by statute, he was only appointed to represent people who are presumed innocent. Gotta love it.
Terrible to get threatened that way by a judge. All the scenarios that I can imagine an improper argument by the defense about silence would involve made-up reasons to not testify that have no evidence in support. It is not improper to argue that the statement were true, or that prior statements are analogous to testimony. The ghosts of all the deceased victims whose "testimony" has been cited by prosecutors are nodding.
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