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

Original Post

In my December 23, 2025, post I discussed an issue we had raised on appeal on behalf of our client, Marvin Pippins, who had been convicted in the EDNY of murder in aid of racketeering, after he killed a gang member he believed had been involved in murdering Pippins' twin brother. I discussed there one of the several important issues the appeal raises, whether the trial judge properly interrupted defense counsel's summation, requiring him to purge his argument and PowerPoint slides of any criticism of the government, specifically, defense counsel's argument that the prosecutors had acted in a "sneaky" way to "train the jurors."

Update

On January 16, 2026, I presented oral argument in the Second Circuit, case no. 25-154, before judges Parker, Robinson and Carney. You can hear the oral argument here. My discussion of the summation issue is at 20:05. The government's response is at 39:14.

How strong must the gang-related motive be?

A second, significant issue presented in this appeal concerns whether Pippins' gang-related motive for the shooting must have been "substantial," i.e., one "integral" to his gang membership, or whether, as the court instructed over objection, Pippins could be acquitted only if his gang-related motive was entirely non-existent, no matter how minimal.

Unusually, the court entertained oral argument for more than fifty minutes, with substantial participation by all three judges. To say the least, it was a spirited argument.

We'll update again when the court publishes its decision.