A federal prosecutor's questionable remarks during closing argument in a drug trafficking conspiracy case in Washington are not enough to reverse the conviction of a man who is now serving a life sentence, a federal appeals court ruled today.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that, while the prosecutor’s remarks may have been improper, the evidence against the defendant, Troy Hopkins, was overwhelming. The appeals court ruled unanimously for the Justice Department in a two-page judgment. Get a copy here (.pdf).
During the trial’s closing arguments in November 2007 at the U.S. District Court for the District of Columbia, the prosecutor, Assistant U.S. Attorney Emory Cole, spoke about the “death and destruction” caused by PCP.
“We know P.C.P. is a horrible drug and it does destroy lives, but there is no evidence in the record that that is, in fact, the case,” Judge Reggie Walton responded in court, according to a transcript. Walton called Cole’s statement potentially inflammatory. “That’s a problem,” the judge said.
Cole also said during his closing that, “as a part of the conspiracy, [Hopkins] had to enforce discipline. Hopkins had to enforce it by any means.” He noted Hopkins' threat to put a gun in a person's mouth.
Walton took exception. “Well, ultimately, the ultimate thing that you do to enforce discipline, I assume, is death. And there is no evidence that he, in fact, intended that,” the judge said.
Later, Walton directed Cole to clarify the remarks. Cole told jurors that they should “not accept” certain remarks about the “destruction” of PCP. “Therefore, when I mentioned death and destruction, disregard that overall,” Cole said. Walton said in court he was “satisfied” with Cole’s “cleaning up” of his closing remarks.
Hopkins, the alleged leader of a drug ring, was sentenced in 2008 to life in prison. "You have worn out your welcome," Walton said in court at sentencing, according to a write-up in The Washington Post. "You have earned the sentence." The FBI's statement on sentencing is here.
In its March 9 decision, the appellate court—Chief Judge David Sentelle and Judges Douglas Ginsburg and Brett Kavanaugh—said “the remarks complained of were minor in light of the prosecutor’s lengthy closing argument and none were central to the conspiracy case against Hopkins. Furthermore, the case was not close as the evidence against Hopkins was substantial.”
The appeals court also affirmed the denial of a continuance for trial, which Hopkins had sought on the ground that he wanted to replace his court-appointed lawyer with retained counsel. Walton found that Hopkins had competent trial counsel.
Daniel Dorsey, court-appointed appellate lawyer for Hopkins, was not immediately reached for comment today.