Closing Argument - Other Improper Arguments

Zapata v. Vasquez, 788 F.3d 1106 (9th Cir. 2015)

The defendant was charged with murdering a Mexican man on a street. There was at least one witness who saw the shooting, but he could not hear what was said prior to the two shots being fired, though he could see the shooter gesticulating at the victim. In the prosecutor’s closing argument, he repeatedly asked the jury to imagine the last words heard by the victim, “You fuckin’ wetback.” There was no support for this argument, which was repeated several times during the rebuttal argument. There was no reason for the defense attorney to fail to object to this improper argument. The state habeas court’s conclusion that a defense attorney could have thought that this argument would backfire was objectively unreasonable.

Deck v. Jenkins, 768 F.3d 1015 (9th Cir. 2014)

The defendant was charged with attempted lewd act upon a minor in violation of state law. He was in a chat room and invited a young girl (actually, an undercover agent) to meet him. The first meeting was just going to be a meeting to talk (and he would give her some pie), but no touching. Then, they could have sex on another occasion, if they wanted to. When the defendant arrived at the pre-arranged location, he had the pie with him (and some condoms). He was immediately arrested. The prosecutor argued that to convict the defendant of the attempted offense, the state did not have to prove that he intended to have sex with her that day; the intent could be to have sex at some future day, perhaps a few weeks in the future. This was wrong under state law. Because the defendant’s entire defense was that he was not guilty of attempt, because he had no intention of having sex with the girl that day, the Ninth Circuit conluded that the prosecutor’s misstatements about the law were prejudicial and constituted a violation of clearly established constitutional law that supported issuing a writ of habeas corpus. Darden v. Wainwright, 477 U.S. 168 (1986). See also Parker v. Matthews, 132 S. Ct. 2148 (2012).

United States v. Certified Environmental Services, Inc., 753 F.3d 72 (2d Cir. 2014)

The prosecutor’s closing argument was improper in several respects, including comments that amounted to improper vouching for witnesses, comments that there was additional evidence that was not introduced, and comments that the jury’s verdict would have important consequences.

Cauthern v. Colson, 736 F.3d 465 (6th Cir. 2013)

The state prosecutor’s closing argument in this death penalty was patently improper and required granting a writ. The prosecutor compared the defendant to the two most recent notorious killers (Daumer and Susan Smith), but the present case and those cases had no similarity. The prosecutor also made numerous Biblical references that were inappropriate and implored the jurors to perform their duty to return a death penalty, which the prosecutor suggested was, in fact, obligatory.

United States v. Andaverde-Tinoco, 741 F.3d 509 (5th Cir. 2013)

The prosecutor improperly referenced the defendant’s post-arrest silence during closing argument in an effort to imply that this disproved the defendant’s defense that he was justified in illegally crossing the border after being beaten and robbed before crossing the Rio Grande. Not plain error, however.

United States v. Richards, 719 F.3d 746 (7th Cir. 2013)

The defendant was charged with being a member of a drug conspiracy. He denied knowing that he was being used as a drug courier. The government offered Rule 404(b) evidence to show that the defendant was familiar with the drug trade. Admitting this testimony was not error. However, the government during closing argument insisted that the evidence proved that the defendant was, in fact, a drug dealer and therefore, the jury could infer that he was guilty of the charged offense. This was an improper propensity argument that was inconsistent with the limited purpose for which the 404(b) evidence was offered.

United States v. Woods, 710 F.3d 195 (4th Cir. 2013)

The prosecutor may not state during closing argument that “the defendant lied when he testified” because this implies that the prosecutor has some basis for claiming that the defendant lied other than the evidence in the case. This error was “plain” error, but not sufficient to warrant reversal of the conviction.

United States v. Darden, 688 F.3d 382 (8th Cir. 2012)

A prosecutor should not argue to the jury that in order to find the defendant not guilty, it would mean that police officers were lying, who had no motive to lie to frame an innocent man and who face danger in their jobs everyday from violent criminals. Harmless error (though no one judge dissented, stating that the argument was reversible error, and noted other ways in which the argument was improper, including denouncing defense counsel).

United States v. Parkes, 668 F.3d 295 (6th Cir. 2012)

The defendant, a customer of a small Tennessee bank, was charged with participating in bank fraud. During closing argument, the prosecutor argued, “And if it’s right to acquit them, you do it, you let them keep the $4 million, you tell the government, “Shame on you for persecuting these poor people.” This was improper for at least two reasons: First, the government knew that in a civil settlement, the defendant had already agreed to a repayment plan. Second, even if there had been no repayment plan that was not a reason to convict if there had been no fraud. In fact, the government had previously moved to exclude evidence that the defendant had, in fact, repaid most of the money. “Even a single misstep on the part of the prosecutor may be so destructive of the right to a fair trial that reversal is mandated.”

United States v. Sanchez, 659 F.3d 1252 (9th Cir. 2011)

The defense in this drug smuggling case was that the suppliers in Mexico threatened the courier to bring the drugs into the U.S. In his closing argument, the prosecutor said that if the defendant’s argument was validated, we might as well send a memo to the Mexican cartels that the defense of duress was all that was needed to win an acquittal in a drug smuggling case. The Ninth Circuit held that this was plain error requiring reversal of the conviction even in the absence of an objection. This was a plea to convict the defendant despite his defense, which if believed, was a valid defense. Asking the jury to convict because of the possible social consequences of acquitting – despite a valid defense – is an improper argument.

United States v. Aguilar, 645 F.3d 319 (5th Cir. 2011)

The prosecutor committed plain error by arguing to the jury that the agent risked their lives by pursuing drug dealers, only to come to court to be called a liar by the defense. The Fifth Circuit reversed the conviction.

United States v. Delgado, 631 F.3d 685 (5th Cir. 2011)

Several errors in this case – when considered cumulatively – required that the conviction be set aside: (1) there was insufficient evidence offered to support a deliberate ignorance instruction, because there was no evidence of the defendant’s knowledge of the high probability of the criminal activity; (2) the prosecutor improperly stated during closing argument that the defendant, who did not testify, had “lied to agents when they interviewed her” when she denied guilt. This amounted to an improper statement of the prosecutor’s personal opinion; (3) a government agent testified (non-responsively to a question) that defendant’s trucking company had been involved in other drug trafficking; (4) the absence of a full transcript of the proceeding. In a separate holding, the Fifth Circuit also reversed the defendant’s conspiracy conviction on sufficiency grounds. All these errors, when considered cumulatively, denied the defendant a fair trial.

United States v. Warshak, 631 F.3d 266 (6th Cir. 2010)

The prosecutor impermissibly commented about his service in the military and the JAG Corps, none of which was relevant in any way to the issues on trial. He simply attempted to increase his stature with the jury, which was not proper. The prosecutor also improperly suggested that the decision of the grand jury to indict the defendant pointed to their belief that the defendants were guilty. Again, an improper argument. Harmless error.

United States v. Wright, 625 F.3d 583 (9th Cir. 2010)

During the prosecutor’s closing argument in this child pornography case, he stated that he had tried numerous similar cases and that it was not infrequent for the defendant to blame the crime on his roommate, or that some other person (or hacker) put the child pornography on his computer, and that the interrogating officer did something wrong. The prosecutor then commented that seeing all three arguments in one case – a trifecta – was unusual. The Ninth Circuit held that this argument was improper, because it amounted to introducing evidence that was not in the record and also “denigrated the defense as a sham.” Harmless error.

United States v. Hills, 618 F.3d 619 (7th Cir. 2010)

During the prosecutor’s closing argument in this multi-defendant case, the prosecutor said, “And you don’t really need to worry about that Fifth Amendment protection unless you’re worried that you’re doing something illegal. They knew perfectly well precisely what they were doing. . . . In this case, they’re using the Fifth Amendment not as a shield to protect themselves from incrimination, but as a sword to prevent the IRS from getting the information that they are entitled to.” This improper argument amounted to prosecutorial misconduct that required setting aside one defendant’s conviction under the plain error standard. See Griffin v. California, 380 U.S. 609 (1965).

United States v. Reyes, 577 F.3d 1069 (9th Cir. 2009)

In this “combative” trial involving allegations of illegal options back-dating, the defendant, who was a corporate executive who signed corporate financial statements defended on the basis that he thought the Finance Department was aware of the back-dating and properly documented the options transactions in the financial statements. Only one person from the Finance Department testified for the government and she testified that she did not know about the back-dating. However, the government knew – both through FBI interviews and through a pending SEC lawsuit against other people in the Finance Department – that people in the Finance Department were aware of the back-dating. No other people from the Finance Department testified (in part because they asserted the Fifth Amendment right not to testify). In closing argument, the defendant argued that other people in the Finance Department knew (though there was no evidence of this at trial). The government then responded that no other people in the Finance Department knew (though the government knew that this was false). The Ninth Circuit held that this amounted to prosecutorial misconduct that necessitated reversing the conviction. “We do not lightly tolerate a prosecutor asserting as a fact to the jury something known to be unture or, at the very least, that the prosecution had every strong reason to doubt.”

United States v. Ayala-Garcia, 574 F.3d 5 (1st Cir. 2009)

The defendants were prosecuted for drugs and firearm offenses. During rebuttal closing argument, the prosecutor held up the individual bullets – 31 of them – and said that each bullet represented a life that was saved. He further argued that there was a war going on in the housing projects and the defendant was a soldier in that war. The First Circuit held that these improper arguments necessitated granting a new trial.

United States v. Mannava, 565 F.3d 412 (7th Cir. 2009)

The defendant was charged under 18 U.S.C. § 2422(b) with attempting to persuade a person to engage in sexual activity that constitutes a violation of state law. The state law that was allegedly violated was statutory rape, which is actually termed “child molestation” under Indiana law. Repeatedly, however, the prosecutor decried the defendant’s effort to “rape” the victim in this case (there was no victim, just FBI agent posing as a child in email conversations with the defendant). These improper accusations by the prosecutor were reversible error.

United States v. Farinella, 558 F.3d 695 (7th Cir. 2009)

In this case involving misbranded food, the prosecutor repeatedly misrepresented the nature of the evidence. The food that the defendant purchases wholesale had a “best when sold by” date on the label. He changed that date and re-sold the food. There was no evidence what the “best when sold by” date referred to. There was no evidence that the food expired or was unhealthy after that date. Nevertheless, throughout the trial, the prosecutor referred to the food as having “expired” and being rancid and suggested that it posed a health risk. None of this was true. To make matters considerably worse, the prosecutor also decried the “high-paid” defense lawyer and urged the jury not to let the defendant “buy his way” out of a conviction. All of these comments amounted to reversible error and merited sanctions imposed on the prosecutor. Because the conviction was reversed on sufficiency grounds, the appellate court could not provide any further relief to the defendant.

United States v. Clark, 535 F.3d 571 (7th Cir. 2008)

A prosecutor should not argue that a defendant’s defense is “the standard defense” raised by defendants in drug cases. As the Supreme Court noted in Taylor v. Kentucky, 436 U.S. 478 (1978), arguments such as this (and arguments that diminish the importance of the presumption of innocence and the requirement of proof beyond a reasonable doubt) improperly suggest that all defendants are guilty. Harmless error.

United States v. Mendoza, 522 F.3d 482 (5th Cir 2008)

A prosecutor may not comment, during closing argument, on the defendant’s demeanor at counsel table in a case in which the defendant did not testify. Harmless error.

United States v. Shoup, 476 F.3d 38 (1st Cir. 2007)

The government may not invite the jury to make an inference regarding the absence of a witness whose unavailability has arisen because of the invocation of his Fifth Amendment right against self-incrimination. In this case, the prosecutor referred to the “phantom” witness, who the prosecutor knew had invoked his Fifth Amendment right not to testify. Harmless error.

United States v. Palma, 473 F.3d 899 (8th Cir. 2007)

In this Social Security fraud trial, the prosecutor pointed to each member of the jury and told them that they were each victims of this crime. This was improper argument. Characterizing the jurors as victims was akin to the prohibited “golden rule” argument.

United States v. Van Eyl, 468 F.3d 428 (7th Cir. 2006)

The prosecutor’s closing argument advanced a theory of guilt that had previously been rejected by the trial court. The trial court acted within its discretion in granting a new trial. The prosecutor repeatedly referred to various witnesses’ lay opinion that the defendant’s conduct in this complex fraud trial was fraudulent. The prosecutor repeatedly referred to witnesses’ testimony that it did not take a CPA to tell the difference between right and wrong.

United States v. Yakobowicz, 427 F.3d 144 (2d Cir. 2005)

The trial court utilized a procedure that allowed both sides to offer a brief summary argument after each witness testified. The defendant objected. The Second Circuit reversed the conviction, holding that this procedure, which is not envisioned in the Federal Rules of Criminal Procedure, gives an unfair advantage to the prosecutor. Though interim arguments or summaries have been permitted in certain circumstances, in this case, there was no need. In addition, the government used the summary procedure to repeatedly argue its case (not just to summarize complex testimony), asking rhetorical questions and urging the jury to draw inferences from the testimony that was just heard.

Weaver v. Bowersox, 438 F.3d 832 (8th Cir. 2006)

The prosecutor urged the penalty phase jury to do their duty and vote to execute the defendant. The comments implored the jury to act as good soldiers do and protect the community. This is business. Toughen up. The message for these types of people must be death. I am the top law enforcement officer in this jurisdiction and I determine which cases are appropriate for the death penalty. Etc. The Eighth Circuit held these comments were too inflammatory and required setting aside the death penalty. The comments also violated Caldwell, and Zant v. Stephens.

United States v. Perlaza, 439 F.3d 1149 (9th Cir. 2006)

During the closing argument, the prosecutor argued to the jury that once the evidence was introduced, the presumption of innocence went out the window. When the defense objected, the judge failed to correct this erroneous statement, commenting, instead, that “that’s proper rebuttal.” The defendant’s conviction was reversed.

Hodge v. Hurly, 426 F.3d 368 (6th Cir. 2005)

The Sixth wrote, “During his egregiously improper closing argument, the prosecutor commented on the credibility of witnesses, misrepresented the facts of the case, made derogatory remarks about the defendant, and generally tried to convince the jury to convict on the basis of bad character, all while defense trial counsel sat idly by. We conclude that defendant’s trial counsel was constitutionally ineffective in failing to object to this misconduct . . .”

Ward v. Dretke, 420 F.3d 479 (5th Cir. 2005)

Trial counsel was ineffective in failing to object to closing argument statements by the prosecutor that the jury would be ridiculed if they sentenced the defendant too leniently; and that they should use Biblical standards in imposing punishment.

United States v. Holmes, 413 F.3d 770 (8th Cir. 2005)

Statements by the prosecutor that the defense counsel was “colluding” with the defendant to deceive the jurors was an improper argument. Arguments by the prosecutor that repeatedly referred to counsel, by name, and claimed that he was using red herrings to confuse the jury were inappropriate. The prosecutor was encouraging the jury to focus on defense counsel, rather than the evidence. The improper argument of the prosecutor required that the conviction be set aside.

Bates v. Bell, 402 F.3d 635 (6th Cir. 2005)

In this death penalty trial, the prosecutor’s closing argument included the following improper arguments (1) suggested to the jury that if the defendant’s life was spared, the jurors would be accomplices in the defendant’s subsequent crimes; (2) accused the defense attorney of being paranoid and criticized the attorney’s frequent objections to evidence; (3) commented on the credibility, by expressing personal opinions, about the defense mental health experts; (4) likened the defendant to a rabid dog, the only solution to which is death. The Sixth Circuit set aside the death penalty.

United States v. Weatherspoon, 410 F.3d 1142 (9th Cir. 2005)

Two improper arguments by the prosecutor required reversing the conviction: (1) the prosecutor improperly vouched for the the cops’ testimony by arguing that they would lose their jobs if they lied at trial; (2) the prosecutor urged the jury to convict the defendant in order to reduce the crime rate generally.

United States v. Moore, 375 F.3d 259 (3rd Cir. 2004)

Defendant was charged with arson and possession of a weapon by a convicted felon. Throughout the trial, the prosecutor introduced various “bad acts” evidence that had no bearing whatsoever on the charged offenses, including domestic abuse and drug dealing. No objection was raised by the defense attorney. Then, in closing argument, the prosecutor labeled the defendant a terrorist. Again, no objection. The Third Circuit held that the prosecutor’s behavior amounted to plain error and reversed the conviction, noting, “There was a serious break down here.”

United States v. Ollivierre, 378 F.3d 412 (4th Cir. 2004)

The prosecutor improperly impugned the integrity of the defense attorney when he argued that it was incredible that the defense attorney could make his arguments “with a straight face.” Arguments such as this and arguments that suggest that defense attorneys’ role is to muddle the issues are inappropriate. See also, United States v. Vaccaro, 115 F.3d 1211 (5th Cir. 1997). Harmless error.

Boyle v. Million, 201 F.3d 711 (6th Cir. 2000)

Among the sins committed by the special prosecutor in this murder case was “accusing” the defendant of hiring the best expensive lawyer he could who nit-picked every issue. A host of other improper arguments resulted in granting a writ and setting aside the murder conviction.

Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003)

It was improper for the prosecutor to place an empty chair in front of the jury (representing the decedent) during the closing argument. Not grounds for granting a writ, however.

United States v. Wilson, 135 F.3d 291 (4th Cir. 1998)

The defendant was on trial for CCE. There was evidence that on occasion, a person came to his apartment complex and grabbed something from him and that he took out a gun and fired at the car when it drove off. During closing argument, the prosecutor suggested that the defendant shot and killed the driver of the car. The defendant was not charged with murder and there was, in fact, no evidence that the driver was shot, or killed. This closing argument was improper and required reversing the conviction. (In fact, the prosecutor knew that someone else had been convicted in state court for the murder of the driver).

United States v. Boyd, 131 F.3d 951 (11th Cir. 1997)

The prosecutor's closing argument that referred to the War on Drugs and the defendants' participation in that war, as the enemy, was inappropriate. Harmless error.

United States v. Rodrigues, 159 F.3d 439 (9th Cir. 1998)

The prosecutor’s closing argument criticized the defense counsel’s theory of the defense. However, the defendant’s theory – that is, his explanation of what the government was required to prove, but failed to prove – was theoretically correct. The prosecutor argued, in essence, that the government was not required to prove what the defense attorney claimed it was required to prove. But the defense counsel was correct. Moreover, the prosecutor improperly argued that the defense attorney had attempted to deceive the jury from the start. “When [the prosecutor] says the defendant’s counsel is responsible for lying and deceiving, his accusations cannot fail to leave an imprint on the jurors’ minds. And when no rebuke of such false accusations is made by the court, when no response is allowed the vilified lawyer, when no curative instruction is given, the jurors must necessarily be thinking that the false accusations had a basis in fact. The trial process is distorted.”

United States v. Udechukwu, 11 F.3d 1101 (1st Cir. 1993)

The defendant was arrested carrying heroin at the airport in Puerto Rico. She immediately agreed to cooperate and claimed that she had been coerced into carrying the drugs by a sinister drug dealer in Aruba. The government investigated the identity of the Aruba connection and in fact determined that this person existed and was the target of an ongoing investigation. This was not made known to the defense. During closing argument, the prosecutor repeatedly expressed skepticism about this supplier, intimating that there was no such person, or that he was not whom the defendant claimed he was. This was prosecutorial misconduct necessitating a reversal. The improper withholding of Brady information, coupled with the misleading closing argument denied the defendant her due process rights.

Arrieta-Agressot v. United States, 3 F.3d 525 (1st Cir. 1993)

The prosecutor’s “war on drugs” closing argument, referring to the defendants as enemy soldiers who have poisoned the youth of the society was improper and required reversing the convictions. The court characterized this argument as “150 proof rhetoric.”

United States v. Mandelbaum, 803 F.2d 42 (1st Cir. 1986)

It is error for a prosecutor to tell jurors to “do their duty and return a verdict of guilty.” It was harmless error in this case.

United States v. Burns, 104 F.3d 529 (2d Cir. 1997)

After the defense attorney completed his closing argument, the prosecutor responded by sarcastically applauding, suggesting that it was a great “act.” This was inappropriate, but not reversible error.

United States v. Friedman, 909 F.2d 705 (2d Cir. 1990)

The prosecutor told the jury during closing argument that “some people go out and investigate drug dealers and prosecute, while there are others who defend them, try to get them off, perhaps even for high fees.” The prosecutor also referred to the defendant’s opening statement as “unsworn testimony.” These improper remarks by the prosecutor required reversal of the conviction. This is so even though the trial court sustained certain objections to the closing argument of the Assistant United States Attorney.

Floyd v. Meachum, 907 F.2d 347 (2d Cir. 1990)

The Second Circuit holds that the cumulative effect of the prosecutor’s improper arguments denied the defendant a fair trial requiring granting a writ of habeas corpus. Among the prosecutor’s improper statements was the statement that the Fifth Amendment guarantee that a conviction must rely upon proof beyond a reasonable doubt is a shield for the innocent, not a shield for the guilty. The prosecutor also repeatedly referred to her position as a prosecutor, “seeking justice.” Furthermore, the prosecutor’s repeated references to the Fifth Amendment constituted an improper comment on the defendant’s refusal to testify.

United States v. Thame, 846 F.2d 200 (3rd Cir. 1988)

The defendant refused to consent to a search of his suitcase. During closing argument, the prosecutor argued that this was evidence that the defendant knew that the suitcase contained cocaine. This was error. This does not constitute plain error, however, and thus the failure to object at trial waives the issue.

United States v. Flores-Chapa, 48 F.3d 156 (5th Cir. 1995)

Twice during the course of the trial, the judge instructed the prosecutor not to elicit hearsay testimony from the agents relating to what a co-conspirator told them after his arrest. Then, in closing argument, the prosecutor explicitly made reference to the post-arrest statement of the co-conspirator. This amounted to plain error.

Guidroz v. Lynaugh, 852 F.2d 832 (5th Cir. 1988)

The prosecutor’s argument concerning the effect of a jury verdict of not guilty by reason of insanity constituted reversible error.

United States v. Jones, 839 F.2d 1041 (5th Cir. 1988)

During closing argument, the prosecutor stated that a defense witness perjured himself when he accused a government witness of lying, and further, that the defense attorneys sponsored the perjury. Though this argument was reprehensible, it was harmless in light of the overwhelming evidence, the substantial grounds for disbelieving the testimony of the witness, and the curative instruction by the trial judge.

United States v. Solivan, 937 F.2d 1146 (6th Cir. 1991)

Although it is permissible for the prosecutor to appeal to the jury to act as the community conscience, inciting the jury by means of prejudice and passion are not permissible. Here, the prosecutor argued to the jury that because of the defendant’s transactions, the drug problem facing the community would continue if they did not convict her. The defendant’s constitutional right to a fair trial was violated because the appeal to the community conscience in the context of the War on Drugs prejudicially impacted her. The court held that this was not harmless error. Throughout the opinion, the court observes that the War on Drugs is no excuse for suspending constitutional rights.

Sizemore v. Fletcher, 921 F.2d 667 (6th Cir. 1990)

Throughout the course of the closing argument, the prosecutor made disparaging references to the defense attorneys, including their activities representing the defendant prior to trial and their arguments to the jury during the course of trial. A prosecutor may not argue that an accused’s decision to meet with counsel, even shortly after the incident giving rise to a criminal indictment, implies guilt. Nor may a prosecutor suggest to the jury that a defendant hires an attorney in order to generate an alibi, take care of everything, or get his story straight. A writ of habeas corpus was granted.

United States v. Morgan, 113 F.3d 85 (7th Cir. 1997)

The key issue in this case was whether a witness who claimed to see the defendant drop a weapon in the bushes was credible. The defense claimed he was not. The prosecutor argued that it was a sad day when a person in the community was willing to come to court and testify and the defense attorney called him a liar. The prosecutor then asked the jurors to consider how they would feel if they came to testify about something they saw and were then labeled a liar. This was improper argument. In short, the prosecutor violated the proscription against appealing to the jurors’ emotions and inviting the jury to consider the social consequences of its verdict. Harmless error.

United States v. Keskey, 863 F.2d 474 (7th Cir. 1988)

The prosecutor committed error in arguing during his rebuttal argument about why a potential government witness was not called. The prosecutor knew that his offered explanation was not honest. However, the witness was not a key witness and the error did not constitute plain error.

United States v. Dominguez, 835 F.2d 694 (7th Cir. 1987)

It was inappropriate for the prosecutor during closing argument to turn to the defendant and thank him for “coming to the area so that my sister can use drugs.” The error was harmless in this case.

United States v. Cannon, 88 F.3d 1495 (8th Cir. 1996)

The defendants, who were African-American, were tried in North Dakota on drug and weapons charges. The percentage of African-Americans in North Dakota is approximately .6%. During the rebuttal closing argument, the prosecutor stated the defendants were “bad people” and “We are lucky where we live not to come in contact with as many as there may be in other parts of the country. But there are still some around here.” While this was not explicitly a racial comment, the appellate court determined that it was a thinly veiled reference to race and reversed the conviction of both defendants on all counts.

Miller v. Lockhart, 65 F.3d 676 (8th Cir. 1995)

During his sentencing phase closing argument in this death penalty trial, the prosecutor made numerous improper comments, including: (1) pointing to the victim’s family and telling the jury, “You know what their presence here is asking you to do . . . you should consider their wishes” (none of the victim’s family testified); (2) noting the tremendous financial burden on the taxpayers for food, clothing and guards a life sentence entails; (3) urging the jury not to award the defendant with a life without parole sentence, because the defendant had escaped once before; (4) referring to the failure of the defendant to take the stand during the penalty phase; (5) observing that in his life as a prosecutor, he had never seen a tougher defendant. These comments violated the defendant’s right to due process under the standard set forth in Donnelly v. DeChristoforo, 416 U.S. 637 (1974). With regard to the cost of a life sentence argument, “there is simply no legal or ethical justification for imposing the death penalty on the basis that it is less costly than life imprisonment.”

Antwine v. Delo, 54 F.3d 1357 (8th Cir. 1995)

During the closing argument, the prosecutor suggested that the gas chamber presented a quick and painless death to the defendant. Actually, evidence established that the death can be prolonged and painful, including several minutes of conscious suffocation. The prosecutor’s argument may have affected the jury’s decision and was impermissible under Caldwell v. Mississippi, 472 U.S. 320 (1985). In addition, the prosecutor erred in imploring the jury to sentence the defendant to death to save the taxpayer’s money.

United States v. Johnson, 968 F.2d 768 (8th Cir. 1992)

In light of the marginal evidence presented against the defendant, it was reversible error for the prosecutor to argue to the jury that they must act as the bulwark against drugs in the community. The court reviews several cases, including Supreme Court precedent condemning this type of argument: “The drug problem is a matter of great concern in this country today. This court is sympathetic to prosecutors’ vigorous efforts to prosecute participants in the drug trade. However . . . the pressing nature of the problem does not give prosecutors license to encumber certain defendants with responsibility for the larger societal problem in addition to their own misdeeds.”

Reutter v. Solem, 888 F.2d 578 (8th Cir. 1989)

The key witness against the defendant in this drug prosecution was his former law partner and close friend. Unbeknownst to the defense, this witness, who was currently serving a term of imprisonment himself, had applied for commutation of his sentence and the State was actively supporting it. Furthermore, among the members of the commutation board was the prosecutor in defendant’s trial. None of this information was provided to the defense despite a request for all exculpatory and impeaching evidence. This Brady violation was aggravated by the prosecutor’s closing argument during which he argued that the witness had no reason whatsoever to lie and had nothing to gain from cooperating with the State. The conviction was reversed.

United States v. Frederick, 78 F.3d 1370 (9th Cir. 1996)

The prosecutor engaged in misconduct during her closing argument. First, she improperly vouched for a witness by claiming that the witness’s in-court testimony was consistent with her out-of-court statements to law enforcement agents (but her out-of-court statements were not admitted in court). Second, she complimented the defense attorney for successfully cross-examining a prosecution witness and confusing her on the stand. She also said that the defense attorney’s job is to ask the jury to look at a tiny piece of the evidence, while “the government and the judge will be asking you to consider all of the evidence in making your decision.”

United States v. Kerr, 981 F.2d 1050 (9th Cir. 1992)

The prosecutor committed plain error in his closing remarks by repeatedly stating that “he didn’t think” the witnesses were lying; and “he didn’t think the witnesses were hoodwinking” the agents. Even absent objection, these comments necessitated reversing the conviction. The only objection which was made – and was sustained – was when the prosecutor suggested that the judge believed the witness in accepting his plea agreement. The sustained objection, however, was not sufficiently forceful and did not remove the taint of the improper argument.

Mahorney v. Wallman, 917 F.2d 469 (10th Cir. 1990)

The prosecutor’s incorrect and misleading comments about the presumption of innocence necessitated a new trial.

United States v. Smith, 806 F.2d 971 (10th Cir. 1986)

It is plain error for a prosecutor during closing argument to refer to the defendant’s co-conspirators having pled guilty. The prosecutor stated that these pleas should be used as substantive evidence against the defendant.

United States v. Gainey, 111 F.3d 834 (11th Cir. 1997)

The prosecutor argued as follows: Mr. Gainey’s residence was a drug den. He had the spoons. He had the needles. He had the cut. He had the heroin around his neck. And he had the weapons. These are all tools of the drug trade. Ladies and gentlemen, we live here in south Florida and we are very familiar with it by now. This was an improper reference to current events. Jurors may be asked to rely on their common sense, but they may not be implored to consider current events from the newspaper. The prosecutor tried to exploit inappropriately the widespread community fears about drugs.

United States v. Blakey, 14 F.3d 1557 (11th Cir. 1994)

During closing argument, the prosecutor stated that the defendant was a professional criminal; that he presented insufficient exculpatory evidence; and that he was arrested with false credit cards, indicating that the defendant had “real problems.” Each of these remarks was improper. There was no evidence of any prior record – the defendant was not a “professional criminal.” The failure to introduce exculpatory evidence was an improper burden-shifting argument; and the reference to the circumstances of the arrest violated a pretrial agreement limiting the relevance of this evidence. The cumulative effect of these arguments required a reversal, even though the trial court instructed the jury to disregard these arguments.

United States v. Beasley, 2 F.3d 1551 (11th Cir. 1993)

The prosecutor’s references in the closing argument to the war on drugs and the jury’s role in that war was improper and was calculated to inflame the jury. Nevertheless, the trial court sustained an objection and neutralized any harm.

Presnell v. Zant, 959 F.2d 1524 (11th Cir. 1992)

In this death penalty habeas, the court holds that the state prosecutor’s closing argument which recited potions of the 1873 Georgia Supreme Court decision in Eberhart v. State, was prejudicial. The Eberhart court had decried the plea for mercy and held that the victim’s family was more important than the defendant.

Cunningham v. Zant, 928 F.2d 1006 (11th Cir. 1991)

The prosecutor argued to the jury that he was “offended” that the defendant had exercised his Sixth Amendment right to a jury trial in the guilt innocence phase of the trial. This was an outrageous argument, which, along with other errors, warranted the granting of the writ.

McCorquodale v. Kemp, 829 F.2d 1035 (11th Cir. 1987)

During McCorquodale’s death penalty trial, the prosecutor stated that, “after your decision, the appellate court will have a very important responsibility.” It is improper to refer to appellate review in a capital case. However, the trial court’s admonition that the statement was highly improper and that the case ended with the jury’s verdict, was sufficient to correct any improper impression the jury may have had about the importance of what it was deciding.

United States v. Richardson, 161 F.3d 728 (D.C.Cir. 1998)

The prosecutor was black; the jurors were black; the defendant was black and the eyewitness was black. The defense attorney was white. The defense was misidentification. In closing argument, the defense attorney argued vigorously that the eyewitness may have confused the defendant with someone else who may have been the perpetrator. The prosecutor responded that the jury should not fall prey to the “we all look alike” argument. The prosecutor repeated that “we all don’t look alike.” Then, in response to the defendant’s argument that the eyewitness was only 17, and therefore able to make a mistake, the prosecutor responded that in the defense attorney’s world, perhaps 17 year olds have not come of age, but in this world, they are grownups. Both of these arguments played on racial prejudice and amounted to plain error necessitating reversal of the conviction, even without there having been any objection by defense counsel.