2025 Investigative Summary 8

Investigation of Alleged Improper Closing Argument

The Executive Office for U.S. Attorneys referred a matter to OPR based on the judicial criticism of a then Assistant U.S. Attorney for making improper comments during closing argument.  In her argument, the AUSA insinuated that defense counsel had coached a witness to testify inconsistently with her prior statements so that the witness’s testimony would conform to the defense theory at trial.   In addition, the AUSA argued that in drafting the affidavit, defense counsel had substituted her preferred choice of words for the actual words of the witness, was not interested in the truth, and was only trying to avoid a conviction.  The trial court criticized the AUSA for her remarks and issued a curative instruction.  On appeal following the defendant’s conviction, the government conceded that the AUSA’s remarks about defense counsel were improper.  

OPR investigated and concluded that the AUSA’s conduct, while improper, did not rise to the level of professional misconduct.  The evidence at the trial was sufficient to support a good faith belief by the AUSA that defense counsel had made her own conduct an issue in the case and that the conduct in question had some bearing on the jury’s assessment of the credibility and reliability of the defense witness’s testimony.  Nonetheless, OPR concluded that the AUSA exercised poor judgment in her closing argument by placing unnecessary emphasis on defense counsel’s conduct, rather than on the evidence that was more directly relevant to the assessment required of the jury.  In doing so, the AUSA chose a course of action in marked contrast to the action that the Department may reasonably expect an attorney exercising good judgment to take.