Second Update: The Guardrails Remain Off: Defense Counsel Can't Criticize the Government During Summation

Well, it was just a few days ago that I wrote about oral argument in U.S. v. Pippins, an appeal that raised no less than six substantial issues, including whether the trial court properly interrupted defense counsel's summation and made him cleanse his argument and PowerPoint slides of any criticism of the government for using "sneaky" tactics to "train" the jurors.

Yesterday, a panel of the Court issued a summary order affirming our client's conviction. The Court's discussion of each of the six issues is troubling, but I'll focus here on the Court's rejection of the summation issue.

DEFENSE COUNSEL CAN'T CRITICIZE THE

GOVERNMENT DURING SUMMATION

With respect to the trial court shutting down summation, the court said:

Though lawyers are sometimes given leeway, erroneously or not, to make somewhat inflammatory comments about opposing counsel, the Supreme Court has instructed district courts not to allow such mudslinging. United States v. Young, 470 U.S. 1, 9 (1985) (“Defense counsel, like [the government], must not be permitted to make unfounded and inflammatory attacks on the opposing advocate.”). The court acted within its discretion in prohibiting Pippins from accusing the government of "training" the jury.

This was a surprising holding by the Court, since both the Second Circuit and numerous other circuit courts of appeal routinely affirm the government's strident attacks on defense counsel, often made during rebuttal summation, when defense counsel can't respond.

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). “[S]uch comments are usually not improper because the prosecution ‘necessarily has wide latitude during closing argument to respond to the defense’s strategies, evidence and arguments.” Davis v. Napel, No. 2:14-cv-10019, at *22-23 (E.D. Mich. Feb. 29, 2016), quoting Bedford v. Collins, 567 F.3d 225, 233 (6th Cir. 2009); see also Salameh, 152 F.3d at 139 (“Attorney Campriello also remarked that the weakness of the government’s evidence required the prosecutors to ‘do a little slipping and sliding, a little bobbing, weaving, a little zigging and zaggin[g] as the case developed.’ In light of Attorney Campriello’s criticisms, the government was entitled to respond with similar language in rebuttal.”). 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, a prosecutor is not required to use the most benign terminology or avoid reasonable descriptions of the events in question. One 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).

The Second Circuit in particular 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.”

The Court's reliance on United States v. Young was inapt, as there, defense counsel intimated that the prosecution deliberately withheld exculpatory evidence, and pointed directly at the prosecutor's table stating, “I submit to you that there's not a person in this courtroom including those sitting at this table who think that Billy Young intended to defraud" the alleged victim. Counsel also argued that defendant had been “the only one in this whole affair that has acted with honor and with integrity” and told the jury “[t]hese complex [Department of Energy] regulations should not have any place in an effort to put someone away.”

Whereas defense counsel in Young directed criticism at the government having no record support, our criticism of the government's tactics was entirely record-based and certainly no more hard-hitting that the prosecutors' arguments approved by courts in the numerous cited cases.

Quite simply there should not be two sets of rules, one for the Government and one for the defense.

THE GUARD RAILS REMAIN OFF

I had been hoping the pendulum was swinging back and that the Second Circuit was ready to return guard rails to the conduct of prosecutors and judges in the district courts, so they would no longer be confident the Circuit would rubber stamp their conduct, no matter how egregious. There appears to be glimmers of hope with respect to the Circuit's review of white collar prosecutions. However, if the moderate panel that decided U.S. v. Pippins -- Parker, Robinson and Carney -- gave the six arguments raised on appeal such short shrift, defendants in non-white collar cases have no reason to believe change is coming. As to them the guard rails remain off.