The defense almost invariably challenges the testimony of the prosecution’s witnesses at trial. If not, why go to trial, except in those rare instances where the argument is that the evidence is legally insufficient to prove either the commission of a crime or that the defendant was the perpetrator. Otherwise, somebody has to be wrong.
In United States v. Ruiz, the 9th Circuit was faced with this fairly common situation during the felon in possession trial, but with a twist: In summation, the prosecution set the defendant up by arguing to the jury that in order to find him not guilty, the jury had to conclude that the cops were lying. Had to. Not mistaken. Not wrong. Not erroneous, but lying. And that meant, implicitly, that it was the defendant’s burden to prove to the jury that the cops were lying.
To highlight parts of his closing argument, the prosecutor utilized a PowerPoint slide presentation consisting of pictures of the alleged crime scene, photographs of the witnesses who testified at trial, summaries of the testimony presented, and visual representations of the jury instructions, and of the government’s key arguments. Following a slide depicting the first element of the offense—“the defendant knowingly possessed the firearm or ammunition”—were three slides depicting alternative “way[s] to find defendant guilty.” The slides stated that the jurors could find Ruiz not guilty “only” if they found that Officers Peck and Ludikhuize “lied to you” and that the Fuentes sisters were mistaken.
The defense objected. The judge responded “meh,” and the prosecutor continued unmolested. It’s not the first time that happened .
On appeal, the defense argued that the prosecution’s summation, with visual aids, created a false choice for the jury, contending that anything short of proof that the cops were lying meant that the jury must find the defendant guilty. In an opinion by Judge Richard Paez, the court held:
To that end, “prosecutors have been admonished time and again to avoid statements to the effect that, if the defendant is innocent, government agents must be lying.” Id. (citation and internal quotation marks omitted). “It is also true, however, that the prosecution must have reasonable latitude to fashion closing arguments. Inherent in this latitude is the freedom to argue reasonable inferences based on the evidence. In a case that essentially reduces to which of two conflicting stories is true, it may be reasonable to infer, and hence to argue, that one of the two sides is lying.”
So “don’t do it,” but if you do, no big deal. While it’s true, not to mention obvious, that the prosecution is entitled to some latitude to argue reasonable inferences, it refers to inferences “based on evidence.” In other words, that the evidence provides a basis for the jury to draw an inference. But that’s not what the prosecution argued in summation, nor what the defense argued on appeal.
The court played a game, much like the prosecution did at trial, shifting the focus of the argument away from evidence and factual findings, and instead deftly slipped in the legal burden in its place. The prosecution didn’t argue that the jury should conclude that it’s witnesses, the cops, were credible and accurate, but rather what the jury should understand the defendant’s burden to be. The argument was that unless the defense proves the cops were lying, the jury must return a guilty verdict. That’s no inference “based on evidence.”
When the court holds that it’s fair game for a prosecutor to argue “that one of the two sides is lying,” that’s a gross mischaracterization of what happened in this case. The prosecution didn’t argue the defendant lied, a fair approach on summation. The prosecution argued the defendant’s burden of proof was to prove the cops did.
In concurrence, Judge Harry Pregerson refuses to let the prosecution’s gambit get sanitized, opening his opinion with a beloved quote from Berger v. United States, 295 U.S. 78, 88 (1935) (Sutherland, J.), flowing into this:
There was no reason for the prosecutor to push the envelope and ignore Justice Sutherland’s warning that a prosecutor “may strike hard blows,” but not “foul ones.” Id. The prosecutor struck foul blows by repeatedly telling the jury that they could acquit Ruiz only if they found that both Officer Peck and Officer Ludikhuize were liars. The prosecutor emphasized his improper statements with PowerPoint slides that stated: “Only Way Not Guilty: Officer Peck lied to you” and “Only way not guilty: Officer Ludikhuize lied to you.”
Wait, you say. Concurrence? After a quote like that, a concurrence? Yes, a concurrence.
The prosecutor’s argument relies upon specious reasoning. The jury could have concluded that the officers were telling the truth, but still have determined that the evidence put forth by the government was not sufficient to find the defendant guilty beyond a reasonable doubt. The prosecutor instead told the jury that to find the defendant not guilty, it first must find that the two officers lied. This distorts the burden of proof and misstates the law, but sadly is condoned by the incantation: “harmless error review.”
Emphasis added. Harmless error, which is better for the defense than “plain error” which would have been the standard had the defense not objected at trial, is another way of saying, “but we, the appellate judges, think the defendant was guilty anyway, so whatever.”
For all the fine quotes about hardball and lowball, striking hard and striking foul, the precious right to a fair trial by a jury of one’s peers, false choices and the best legal system ever created, this is what it ultimately comes down to before the United States Court of Appeals for the 9th Circuit: but he did it.
H/T Spencer Neal