United States v. Samuel Yakobowicz, Docket No. 04-0201-cr (2d Cir. October 14, 2005) (Winter, Sotomayor, Parker): Sometimes those visiting judges are more trouble than they’re worth. Here, a visiting judge from the Northern District of Ohio, presiding over the defendant’s E.D.N.Y. trial for filing false tax returns, sua sponte adopted a trial procedure we’ve never seen in a criminal case — allowing the parties to make summations after the testimony of each witness. The Circuit ruled that even assuming that such a procedure is permissible in a particularly lengthy or complicated case, it was not warranted in this typical one. The Court also ruled, over Judge Sotomayor’s dissent, that the court’s error of allowing these “interim summations” constitutes a structural error requiring automatic reversal without harmless-error analysis.
The essential facts are thus. Yakobowicz was prosecuted for filing false excise tax returns and impeding the administration of tax laws. Before trial and over defense counsel’s objections, the trial judge announced that he would allow the parties to “make a short statement to the jury” after the testimony of each witness. Op. at 4. Although the judge explained that these “comments [would be] limited to the statements of that witness and how that testimony fits in the overall scheme of the case,” the reality turned out to be much different. Id. When given the opportunity, the prosecutor did not merely summarize the testimony of the witness and how it fit into the Government’s case. Rather, as the Circuit described, “the Government used the interim procedure . . . to argue and reargue its theory of the case,” and “[a]ny distinction between the content of the Government’s interim summations and its final summation was all but invisible.”
In total, the Goverment called 26 witnesses and delivered 10 “interim summations” over the course of 4 1/2 days of testimony. The defendant called no witnesses and was convicted.
On appeal, the Circuit, by Judge Winter, concluded that the trial judge abused his discretion in adopting this novel procedure (though, apparently, the same judge routinely uses it back home). Among other things, this procedure is (1) inconsistent with Rule 29.1 of the Federal Rules of Criminal Procedure (which contemplates that closing arguments are to be held after the close of evidence); (2) violates the traditional rule requiring jurors not to form their opinions before the close of evidence and deliberations; (3) gives an unfair advantage to the prosecution (since “the prosecution almost always calls more witnesses than the defense, which not uncommonly calls none,” and thus allowing the prosecution to give summations after each witness “enable[s] [it] to argue repeatedly the merits of its theory of the case”); and (4) most importantly, undermines the presumption of innocence (since this procedure — effectively requiring the defendant to say something before the close of the Government’s case — undercuts the defendant’s right “to remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion,” and to “see the prosecution’s whole case before deciding on a defense.”) . Op. at 10-11, 15-17.
Judge Winter allowed that “interim summations in some form have been permitted in lengthy and/or complex civil trials.” Op. at 12 (emphasis added). However, there are many differences between civil trials and criminal trials. See Op. at 14-16. Moreover, even assuming that interim summations are permissible in some criminal trials, they should be used only “based on findings that the case at hand differs from the garden variety of cases.” Op. at 13. And “[t]hese differences exist, if at all, in the length of a trial or the complexity of the issues, and most commonly in a combination of the two.” Id. The instant case “involved no length, no complexity, and [thus] no need.” Id. Finally, the Court cautioned that even in the rare case in which interim summations are appropriate, “[t]he model for such procedures . . . is to be found in opening statements which, as noted, are generally limited to statements of expectations as to the evidence rather than arguments.” Op. at 20.
The Court further concluded that “[a]llowing interim summations in this case was a structural error requring reversal” without consideration of harmlessness, since the “entire conduct of the trial from beginning to end is obviously affected by a procedure that systematically allowed argumentative summations after each witness without any showing of particularized need based on length of the trial or complexity of the issues, without authorization in a rule of criminal procedure, and without any attempt to limit the argumentative aspects of the interim summations.” Op. at 19.The problem, the Court explained, was “not that any particular interim summation was unduly preducial.” Rather, it is that “the repetitive and cumulative summations altered and undermined the defense’s use of the presumption of innocence as a defense and had indeterminable effects on defense strategy and tactics.” Op. at 19. Thus, the Court vacated Yakobowicz’s conviction despite his failure to show specifically how the interim summations given by the prosecution prejudiced him.
Judge Sotomayor dissented solely on this point, arguing that the error here constitutes a typical “trial error” subject to harmless error analysis. And because the defendant made no attempt to show how his defense was prejudiced by the procedure, Judge Sotomayor would have affirmed the conviction.