Whether the Prosecution Must Unilaterally "Disarm" During "Rhetorical Battle" With the Defense

I was intrigued by Westlaw's "Headnote of the Day," which states:

When entering rhetorical battle with defense counsel during closing argument, nothing requires the government to disarm unilaterally. 

United States v. Pirro, 9 F. App’x 45 (2d Cir. 2001)

I decided to look a little more into the context of this headnote. In Pirro, the defendant argued that he was denied a fair trial because the prosecutor acted improperly during closing arguments. The prosecutor argued that the defendant's arguments were "implausible and contrary to common experience," said that the defendants were "crooks," and sarcastically disparaged some of the inferences that the defendant asked the jury to draw.

The Second Circuit Court of Appeals noted that very little discussion on these points was required because (as the headnote states above), the government was not required to "disarm unilaterally" in rhetorical battle with the defense. The Second Circuit cases the court cited in support of its conclusion, U.S. v. Rivera and U.S. v. Wilner, clarify that the prosecutor is not foreclosed from being a strong advocate during closing arguments. The court in Wilner employed some rhetorical flair of its own in making this point:

A prosecuting attorney is not an automaton whose role on summation is limited to parroting facts already before the jury. He is an advocate who is expected to prosecute diligently and vigorously, albeit without appeal to prejudice or passion. His task is not rendered easy by the “no holds barred” tactics indulged in by all too many defense counsel in recent years.

I think that this is a good approach for courts to take, since the purpose of closing argument is not only to summarize the facts, but to apply them in a compelling manner. Without leeway to criticize the other side, and employ occasional sarcastic disparagement or colorful language, the prosecutor's closing would be reduced to a dull, unmemorable series of factual reiterations.

Of course, the right to a fair trial may be harmed if the prosecutor strays too far into inflammatory language, or if the prosecutor injects his or her own credibility determinations into the argument. And putting the right to a fair trial to the side for a moment, a prosecutor should probably avoid being overly sarcastic or condescending towards the defense, since this could come across as condescending and alienate the jury.

The lesson from Pirro and the cases it cites (which are probably more noteworthy, since they are published), is that a prosecutor can be a vigorous advocate without infringing the defendant's right to a fair trial. But prosecutors should take care that their arguments don't veer into unfair territory where constitutional violations or alienation of the jury may occur.

How Not to Respect a Defendant's Right to a Speedy Trial

From Legal Cheek:

The incident, which occurred yesterday, sees Judge John Murphy berate public defender Andrew Weinstock in a highly unprofessional manner after he became annoyed at his refusal to waive his client’s right to a speedy trial. The judge then invites the lawyer to “go out back” to an area of the court with no cameras. The courtroom camera captures audio of shouting, swearing and what seems to be a scuffle, with several loud thuds.

The story was initially reported by Florida Today, which provides a video of the incident. The video includes the judge's shouting at the public defender, the judge and the public defender exiting the room, what sounds like an ensuing scuffle, and the applause (at 1:40) by the spectators in the courtroom upon the judge's return.

From the rest of the video, it looks like the defendant ended up asking for the speedy trial anyway, despite his lawyer's disappearance from the courtroom. The judge scheduled the trial for June 9, one week later. This is unsurprising, as the judge sounds out of breath after his return to the courtroom and was probably too exhausted to engage in a second (alleged) brawl over the defendant's Sixth Amendment rights.

Legal Cheek reports that the Public Defender's office will be reporting the incident to the Florida Bar.

Gideon and the Complex Problems of the Criminal Justice System

UCLA Law has been sending out notifications informing students that we should apply for the Gideon Fellowship.  The application form for this fellowship indicates that UCLA has partnered with Gideon's Promise, an organization that focuses on promoting and improving indigent representation in the South.  Students who are accepted into this fellowship will enter a training program with Gideon's Promise and then be placed by that organization in one of several southern Public Defender's offices.

My summer work experience throughout law school has been entirely centered on the prosecution side of criminal law, so I am not sure if I would be viewed as a particularly credible candidate for this fellowship.  I am familiar with the criticism that prosecution-oriented students seek to become part of an oppressive system that all too often disregards the rights and circumstances of defendants.

Moreover, I suppose that I am a bit jaded when it comes to Gideon because I recently read this article by Paul Butler.  The citation is: Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L. J. 2176 (2013).  Here is the abstract.

A low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The critique of rights suggests that rights are indeterminate and regressive. Gideon demonstrates this critique: it has not improved the situation of most poor people, and in some ways has worsened their plight. Gideon provides a degree of legitimacy for the status quo. Even full enforcement of Gideon would not significantly improve the loser status of low-income people in American criminal justice. 

This article is one of many Gideon-focused articles in Yale's symposium issue commemorating the fiftieth anniversary of the landmark ruling that the Sixth and Fourteenth Amendments required states to provide counsel to indigent criminal defendants.  While I think that Butler's article makes some controversial claims, he makes it clear that a Gideon-centered approach to systematic injustice in criminal law is at best incomplete, and at worst, destructive.

Unless there are massive developments on the legislative level, or a fundamental reworking of constitutional doctrine, the most important place to seek change is at the level of the police and prosecutors.  Police have wide discretion when it comes to enforcing the law and arresting individuals, and prosecutors often have a great deal of discretion when it comes to determining whether to prosecute and how high of a sentence to seek.  While some nicely-named commentators have argued for the removal of discretion in the policing process, this removal may be politically unfeasible and can probably only proceed in a step-by-step manner.

In the meantime, students, academic organizations, and programs that care about defendants should not alienate students interested in criminal prosecution - they should instead encourage these students to pursue their career goals while keeping in mind the circumstances of those they prosecute.  Defense-oriented individuals and organizations should work to (non-condescendingly) educate those on the side of the prosecution, even as they oppose them in court.

I have been trying to do my part at keeping an open mind.  After my summer with the district attorney, I wrote my rather defendant-friendly paper on self-defense.  During my summer at the attorney general's office, I wrote a brief where the strongest defense argument I needed to answer was one I raised in my own brief after I discovered it in my own research on the case.  Hoping to remain fair and balanced, however, I have balanced out my defense-oriented briefing and blog posts by writing an essay where I strongly favored prosecution of poor, unaware defendants.

Public defenders are an important part of the system - and Butler recognizes this even while he criticizes Gideon.  One must always keep in mind, however, that defenders are only a part of the system, and a disproportionate focus on this part may fail to affect any meaningful, systematic change in the long run.