The numerous instances of prosecutorial misconduct have been well-documented in this district (and around the country). Again and again, there have been no consequences for the prosecutors who have engaged in the misconduct or in the cases in which the misconduct occurred.
Another example is found in this unpublished opinion from the 11th Circuit, United States v. Foster.
In Foster, the district court found that there was insufficient evidence to support the jury’s verdict and granted a post-trial Rule 29 motion because the defendant withdrew from the conspiracy. The 11th Circuit reversed and reinstated the jury’s verdict. In Foster’s second appeal, decided today, the 11th Circuit found quite a bit of prosecutorial misconduct (without naming the prosecutor) in how it cross-examined a defense witness that was central to the withdrawal defense. Nevertheless, the court found that the misconduct was harmless:
On balance, we conclude that the prosecutor’s improper comments did not prejudicially affect Ms. Foster’s substantial right to a withdrawal defense. There is no doubt that Mr. Danzig supported Ms. Foster’s withdrawal defense; he testified that she refused to cooperate with his internal investigation of Hollywood Pavilion when he called her in 2008.But hold on, the case was close enough that the district judge found that — without a finding of misconduct — that the evidence was insufficient. So more misconduct and nothing happens. No consequences for the prosecutor. And the conviction remains intact. I understand that people make mistakes and that generally we should give others the benefit of the doubt. But I wonder how a defense attorney would be treated if he or she did the same thing. Or better yet, how do judges treat defendants who ask for second chances? If we want the misconduct to stop, courts need to start taking some action — dismiss cases, exclude evidence, and so on. Otherwise, it will just keep happening over and over again.