2016 Investigative Summary 4
Investigation of Alleged Improper Closing or Rebuttal Argument
A DOJ attorney reported judicial criticism of his closing argument, during which he repeatedly referred to the defendant's prior conviction and urged the jury to consider it as evidence of the defendant's guilt. Although the court upheld the defendant's conviction, it found that the DOJ attorney improperly urged the jury to convict the defendant because of his prior conviction for similar crimes.
OPR conducted an investigation and concluded that the DOJ attorney committed professional misconduct by acting in reckless disregard of his obligation not to violate the prohibition of Fed. R. Evid. 404(b) against offering evidence of a person's character to show that the person acted in accordance with that character, and his obligation pursuant to the applicable rules of professional conduct not to refer to irrelevant or inadmissible evidence.
In reaching its conclusion, OPR found that the outline that the DOJ attorney had prepared and relied upon during much of his closing argument closely tracked the closing argument's structure and language, except when the DOJ attorney made the extemporaneous comments that the court criticized. While the DOJ attorney's comments were extemporaneous, and the DOJ attorney described himself as flustered by his effort to avoid arguing the defendant's propensity to commit the crime charged, OPR found that, as an experienced prosecutor, the DOJ attorney should have been able to avoid referring to the defendant's prior conviction for a similar crime.
OPR further concluded that to the extent that the DOJ attorney knew that he was becoming flustered or confused in his attempt to make a permissible argument, he should have avoided extemporaneous comment on this topic and not strayed from his prepared presentation. OPR concluded that the DOJ attorney's failure to avoid violating Rule 404(b) was a gross deviation from the standard of conduct that an objectively reasonable attorney would observe in such a situation.
OPR referred its findings to the PMRU, which concluded that there was preponderant evidence to support OPR's finding that the DOJ attorney acted in reckless disregard of his obligations under Fed. R. Evid. 404(b) and the applicable state rules of professional conduct. Because the DOJ attorney resigned from the Department before the PMRU completed its review, no discipline could be imposed.
At the direction of the PMRU, OPR notified the DOJ attorney's state bar of OPR's finding.