Archive | prosecutorial misconduct

Tuesday, May 9th, 2023

Circuit considers several summation misconduct claims, affirms in summary orders

In two summary orders issued on the same day by the same panel (Cabranes, Bianco, and Merriam), the Second Circuit considered several different claims of prosecutorial misconduct. Ultimately, neither defendant prevailed, although for different reasons. 

During the main summation and rebuttal of United States v. Saunders, No. 22-569 (2d Cir. May 3, 2023) (summary order), an 18 U.S.C. 922(g)(1) felon-in-possession trial, prosecutors described the facts of the case in vivid detail that emphasized the dangers posed to the public and bystanders. Comments included: “Samuel Saunders . . . sprayed bullets into the middle of a city street”; “he barely missed other innocent bystanders”; “That’s why we’re here, because Samuel Saunders sprayed bullets into a public street and almost killed someone”; “The defendant acted with a complete disregard for human life. He could have killed multiple people that night. There were kids in the street. You saw them running for …

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Thursday, February 25th, 2021

Court issues opinion detailing SDNY prosecutorial misconduct

On February 22, 2021, the district court issued its full opinion regarding prosecutorial misconduct issues in United States v. Ali Sadr Hashemi Nejad, 18 Cr. 224 (AJN), and made public affidavits filed by United States Attorneys involved in the case. The full opinion is here.

In this opinion, the district court restates that it did not find proof of intentional misconduct, but nonetheless finds “pervasive” “errors and ethical lapses.”

With respect to these lapses, the publicly filed exhibits include, inter alia, these exchanges between the U.S. Attorney supervisors involved in the case:

Crowley, Shawn (USANYS) 5:26 PM:
i think i’m going to stop with the closing and devote the rest of the night to cleaning out my
Emil J. . Bove 5:26 PM:
i was just going to write to you – like the window was on my screen and yours popped in – are

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Friday, February 19th, 2021

District Court urges the DOJ to investigate misconduct by SDNY prosecutors

On February 17, 2021, the district court issued a new order in the continuing saga of United States v. Ali Sadr Hashemi Nejad, 18 Cr. 224 (AJN). A previous opinion detailing the relevant facts was issued on September 16, 2020.

This is a prosecution that began to unravel back in early 2020. In 2018, Mr. Sadr was indicted on charges of conspiracy to defraud the United States, conspiracy to violate the International Emergency Economic Powers Act, bank fraud, and money laundering offenses. The prosecution was handled by AUSAs Andrew J. DeFilippis, Matthew Laroche, David W. Denton, Jr., Emil J. Bove, III, Jane Kim, Michael Krouse, Rebekah Donaleski, Shawn Crowley, and Stephanie Lake.

In March 2020, after a two-week jury trial, Mr. Sadr was found guilty of five counts.

After trial, Mr. Sadr moved for acquittal as a matter of law or, alternatively, a new trial. While that motion was …

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Friday, August 31st, 2012

“The Truth” Didn’t Set Him Free

United States v. Williams, No. 11-676-cr (2d Cir. July 16, 2012, amended August 15, 2012) (Sack, Livingston, Lynch, CJJ)

At Malik Williams’ gun trial, the prosecutor, in rebuttal summation, said, “this is not a search for reasonable doubt, this is a search for truth.”  The circuit noted, and indeed the government conceded, that this statement “was improper and should not have been made.” A statement like that “has the potential to distract the jury from the bedrock principles that even if the jury strongly suspects that the government’s version of events is true, it cannot vote to convict unless it finds that the government has actually proved each element of the charged crime beyond a reasonable doubt” and that under the presumption of innocence the jury must acquit even if it cannot “independently find the truth.”   

Nevertheless, this “unwise and erroneous” remark was not plain error.  The remark …

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