Third Update - Petition For Rehearing: May a Trial Court Prohibit Criticizing the Government During Defense Summation?

A special thanks to the many of you who have been following the issue we've raised on appeal in the Second Circuit in U.S v. Pippins, regarding whether a trial judge can prohibit defense counsel from criticizing the government during summation. This was only one of the six issues we raised on appeal but it's the one that has most stuck in my craw, since courts routinely permit the government to sharply criticize defense counsel. It's just another example of the courts applying two sets of rules: one for the government and the other for the defense.

As those of you who have been following this saga know, we lost in the Second Circuit. This particularly pissed me off because we had a good panel -- Parker, Robinson and Carney -- and the oral argument went well. Judge Robinson in fact reversed a conviction just this past Wednesday, in U.S. v. Cardenas, in a decision joined by judges Carney and Park. But it seems that when the conviction is for murder, the guardrails remain off and anything goes. If we couldn't win with this panel, there's really no hope.

Anyway, we've filed for rehearing, an act which is pretty much tilting at windmills since the Circuit rarely grants rehearing, and certainly not where three of the more likely judges to rule for us have already ruled against us. But we thought we needed to give the client even this glimmer of hope, especially since he's doing mandatory life. We open the Petition with this quote from Learned Hand, speaking at the Legal Aid Society of New York's 75th anniversary celebration in 1951: "If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice." 

To be continued...

Richard Levitt