May a Trial Court Prohibit Criticizing the Government During Defense Summation?

At a recent trial (now on appeal) the district court interrupted my summation and required me to take a lengthy break to cleanse my PowerPoint slides and summation notes of arguments criticizing the government. The court instructed, “Do not impugn the integrity of the government as if they’re trying to pull a fast one.” Was this kosher?

The Background

What precipitated this prohibition? We were trying a murder case in which the defendant was accused of murdering the victim to maintain his position in a specific gang, the 5-9 Brims. The defendant testified that he killed the victim because he believed the victim had killed his brother, not because of his affiliation with the 5-9 Brims.

Additionally, the evidence showed that if the defendant had loyalty to any group it was to the "Bread Gang," not the 5-9 Brims. The Bread Gang had many members, most of whom, like the defendant, lived in the Marlboro Houses in Brooklyn. While some were also members of the 5-9 Brims, many were not, including those who belonged to rival gangs. The government therefore had a strong incentive to convince the jury that the Bread Gang in fact was part of the 5-9 Brims.

To further this argument the government created the entirely fictional name "5-9 Brims from Marlboro" to use as a substitute for "Bread Gang" when it examined its cooperating witnesses, in order to plant in the jury's mind an equivalency between the 5-9 Brims and the Bread Gang. The government's principal cooperator acknowledged during cross-examination, however, that he had never before heard the phrase "5-9 Brims from Marlboro" before he heard the government use it.

The Sin

This to me seemed conniving and so I argued during summation, "the way they tried to make this association between the Bread Gang and the 5-9 Brims is a little bit sneaky." And I displayed a related slide that suggested the government was attempting to "train" the jury.

The Government Objects and the Court Reacts

That's when all hell broke loose. The government's objection was sustained and the court instructed the jury to “disregard this slide title and any suggestion somehow that the Government has done anything improper or is any way trying to train you.”

The court then prohibited me from further criticizing the government and ordered a lengthy break while I sanitized my slides and argument. The court later agreed I could argue that the government was trying to put "a square peg in a round hole" so long as I didn't argue the government was being sneaky and trying to train the jury.

A Double Standard?

Was the court correct? Is the government insulated from such criticism? If it is, there is a double standard, since the government routinely is permitted to direct equally or far more pointed criticism at defense counsel during summation, including during rebuttal summation when the defense can't respond.

The Government Routinely Lobs Broadsides at the Defense

Thus the case law permits the Government to argue in summation that defense counsel’s summation arguments were “smoke and mirrors” (Rodriguez v. Morris, No. CV-19-04957-PHX-GMS, at *17-18 (D. Ariz. May 17, 2021)); or that defense counsel was lacking “common decency” and “made up” testimony” (United States v. Salameh, 152 F.3d 88, 138 (2d Cir. 1998)); or that “the defense is attempting to trick the jury” (United States v. August, 984 F.2d 705, 715 (6th Cir. 1992)); or that the defense theories were “nonsense” and that the defense’s opening statement “attempt[ed] to manipulate you, to play on our emotions, and to distract you from what this case is actually about” (United States v. Fox, 761 F. App'x 765, 768 (9th Cir. 2019) (“Criticism of defense theories and tactics is a proper subject of closing argument.”) (citations omitted)); or that the defense case “was a total sideshow.” United States v. Rainford, 110 F.4th 455, 474 (2d Cir. 2024). And it is therefore “permissible for the prosecution to comment on defense strategy during closing. Slagle v. Bagley, 457 F.3d 501, 522 (6th Cir. 2006). “Moreover ... [o]ne of the purposes of the closing argument is to persuade the jury not to buy into the opposing party’s theory of his case.” Robertson v. Simpson, No. 5:05CV-239-R, 2011 WL 3880940, at *14 (W.D. Ky. Sept. 2, 2011) (cleaned up, emphasis added).

What has the Second Circuit Approved During the Government's Rebuttal Summation?

The Second circuit has countenanced a broad range of hard-hitting tactics during the Government’s rebuttal summation. See United States v. Caputo, 808 F.2d 963, 968 (2d Cir. 1987) (Government’s reference to the “misrepresentations and sheer inventions” of defense counsel was appropriate response since defense counsel made several statements during summation which led the judge to reprimand him for statements which compared the Government’s investigatory tactics to “Hitler’s Germany”); United States v. Praetorius, 622 F.2d 1054, 1060-61 (2d Cir. 1979) (holding that defense counsel’s accusations of a “frame up” or attempt to “dupe” the jury, “rendered quite proper the relatively mild response of the Assistant United States Attorney” in criticizing the defense counsel’s attacks on the integrity of the Government’s case and the good faith of the Government’s agents, witnesses, and prosecutorial staff). In United States v. Marrale, 695 F.2d 658, 667 (2d Cir. 1982), this Court stated that the prosecution’s comments in direct response to defense counsel’s arguments were provoked by a “permissible desire to dispute defense histrionics.”

What's Food for the Goose....?

And so, when the government invents out of whole cloth the phrase "5-9 Brims of Marlboro" to use as a substitute for Bread Gang, for the transparent purpose of planting in the jury's mind an equivalency between the Bread Gang and the 5-9 Brims, was it fair game to label this as a "sneaky" effort to "train" the jury? Or are there two rules for what's fair game during summation, one for the government and another for the defense?

As I said, the case is on appeal, and whether the district court's prohibition against criticizing the government was proper will be one of several issues the Second Circuit will be called upon to decide.

What do you think? We'd love to hear your thoughts.

Richard Levitt

Levitt & Kaizer

(212) 480-4000