New York Federal Criminal Practice Blog
January 6, 2009

Second Circuit Affirms Murder Conspiracy Conviction Despite Prosecutor's Improper Vouching

A set of facts that read like a treatment for a Sopranos script is the backdrop for a notable decision from the Second Circuit on the propriety of summation arguments made by both sides in a criminal trial.  Mistaken suspicions that a mobster was cooperating, a botched hit sending him into the bosom of the government, another botched hit on his one family member that did not go into Witsec . . .  In United States v. Spinelli, 99-1344-cr(L), 2008 WL 5413083 (2d Cir. December 31, 2008), the Court affirmed the defendant’s convictions for murder conspiracy and racketeering, despite the prosecutor’s improper personal vouching for the truthfulness of her witnesses.  The Court expressly rejected the government’s argument that a prosecutor may engage in personal vouching if the defense suggests the government’s witnesses had lied, and then goes on to embrace wholeheartedly the defense’s right to attack the credibility of cooperating witnesses.  

Improper Summation Arguments

During her rebuttal summation, the AUSA said to the jury that not one of the cooperating witnesses “had ever lied under oath or perjured themselves” or “falsely implicated anybody in a crime.”  The Court held it was improper for a government prosecutor to make such an assertion to the jury.  “By making these statements, the prosecutor put her own credibility at issue and implied the existence of extraneous proof which would support her assertion about the witnesses’ credibility.”  While she is entitled “to argue forcefully and vigorously to the jury in support of her witness’s credibility,” these arguments “must be based on evidence in the record . . . But the prosecutor is not entitled to tell the jurors that they may rely on her own assurances of the witness’s truthfulness.”

The Court rejected the government’s argument “that a prosecutor may vouch personally for the honesty of government witnesses when the defense has the effrontery to argue to the jury that government witnesses have lied.”  In a paragraph that is a terrific defense of the defense’s right to impeach and impugn cooperating witnesses, the Court held:   

It is not misconduct for a defense attorney to argue on the basis of inferences drawn from the evidence (or the witness's demeanor) that a witness for the government has lied. When an accomplice in a criminal venture makes a cooperation agreement with the government and testifies against his prior criminal confederate, there is no impropriety in the defense attorney arguing to the jury that the cooperating witness has falsely accused the defendant in order to get a better deal for himself. Such arguments are made in virtually every case in which an accomplice testifies for the government under a cooperation agreement.

In a footnote not joined by his colleagues, Judge Laval, who authored the decision, adds that rebuttal summations can be “dangerously emotional” moments for a prosecutor who “may understandably react emotionally” to a defense attorney’s attacks on the government witnesses, and thereby risk a mistrial.  He recommends that all prosecutors review their rebuttal arguments with an experienced prosecutor “who has not been involved in the trial and will therefore give unemotional counsel” (ouch! – and it’s unfortunate that the politically correct “she” is used in this footnote).  

In any event, the Court found the improper arguments were not prejudicial error where “the evidence of Spinelli’s guilt was powerful and well-corroborated.”

Hearing on Perjury Issue

In the same decision, the Court indicated that the district court should have held an evidentiary hearing on the defense’s motion for a new trial based on the claim that the government suborned perjury at trial.  The district court had denied the motion without a hearing based on the prosecutors’ sworn affidavits.  “Because the defendant had no opportunity to challenge the prosecutors' statements, we cannot affirm on the basis of that finding.”  The Court did, however, affirm on the grounds that even if the testimony had been perjurious, it was not material enough to have altered the verdict.

Lawyers: Ephraim Savitt (defendant); AUSA Jo Ann Navickas (who was not the trial AUSA)

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