The prosecutors in a high profile drug case in Washington federal district court appeared to cross the line of permissible statements to jurors, a federal appeals court said, but the conduct wasn't so substantial to warrant a new trial.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said in a lengthy ruling July 29 that the government’s statements in opening and closing remarks did not “substantially” harm six defendants charged with murder and other crimes for their alleged roles in a drug crew.
The court’s opinion examines, among other things, jury selection and an ineffective assistance of counsel claim tied to the prosecution of alleged members of a drug network that operated in Washington in the 1980s and 1990s. Prosecutors alleged members of the group orchestrated 31 murders.
In large part, the appeals court upheld the convictions of defendants who included Kevin Gray and Rodney Moore. The trial lasted ten months in Washington federal district court. Gray and Moore are serving life sentences.
The appeals court, in its per curiam decision—Chief Judge David Sentelle heard the case in March with Judith Rogers and Brett Kavanaugh—remanded parts of the prosecution to the trial court for further hearings. The court said it wants further analysis on the admissibility of certain federal drug reports in the wake of the U.S. Supreme Court’s Confrontation Clause ruling in June in Bullcoming v. New Mexico.
The D.C. Circuit upheld the use of an anonymous jury—prospective jurors’ names, addresses and employment remained a secret—to protect the panel from possible reprisal.
Lawyers for the defendants, including Stephen Leckar of Washington’s Shainis & Peltzman, John Zwerling of Alexandria, Va.’s Zwerling, Leibig & Moseley and Neil Jaffee, an assistant federal public defender, said there was no history of juror intimidation.
The defense attorneys also said that media attention would not endanger juror safety, according to the appeals court.
The D.C. Circuit found troublesome certain statements made in opening and closing remarks.
The court said, for example, that the government’s opening argument “includes a number of instances where the prosecutor went beyond merely providing an ‘objective summary of the evidence.’”
“Although other statements listing the 31 murder victims by names and dates on which they were killed are grounded in admissible evidence that the government intended to introduce at trial, this evidentiary nexus became tenuous once the prosecutor began discussing the victims’ first days of school, favorite songs, families, mothers, fathers, coffins, and funerals,” the court said.
The panel judges said prosecutors in closing argument presented “problematic” statements.
Prosecutors described the sensation of one victim who was bound in tape in the back of a van. “He’s taken out of that U-Haul. He tries to talk but he can’t. All he can do is mumble. He feels the grass under his body. He feels the gravel of the road. And then a gun is placed to the back of his head and two bullets.”
Prosecutors said in the D.C. Circuit that the closing argument had “sympathetic overtones” on a superficial level because the jury heard evidence that the victim was kidnapped, bound and gagged and fatally shot on a roadside. But the D.C. Circuit said the government missed the point.
The appeals court said prosecutors cannot take “artistic license with the trial evidence, construct a more dramatic version of the events, provide conjecture about a victim’s state of mind, and then defend against a prosecutorial misconduct claim by maintaining the statements are ‘factbased.’”
Zwerling said this afternoon called the D.C. Circuit ruling a disappointment, but not a surprise.
"The problem for a defendant in a big case like this is that once the courts have invested 10 months into a trial, it’s going to take dynamite to overturn it," he said. "The court said, yes, the prosecutors went overboard in their opening and closing statements, but it was harmless. Everything's harmless. There's 10 months of harmless evidence."