CA1: Prosecutorial misconduct never a problem

US v. Vazquez-Botet, Nos. 07-1205, 07-1398.  This is a pretty wild political corruption case.  But the issues a pretty distinct.  A denial of a motion to recuse is okay based on the facts which involve the judge’s wife representing a non-party in a tangential matter. 

The First hold that a “relevancy hearing” in which offers of proof were presented to the judge for relevancy determinations was not a violation of the First Amendment, and on the facts, the finding that certain information was irrelevant wasn’t error.  Strangely, the First says “...we leave open the possibility that the public-trial right may apply to some offer-of-proof hearings, we decline to recognize such a right on facts as uncompelling as these...” and then the First admits in a footnote that they are splitting with the Fifth.

There is the usual amount of prosecutorial misconduct and arguably improper FBI agent testimony.  The First gives it all a green light, because the FBI agent’s statements about how they generally instructed their witnesses to do one thing or another were hardly specific.  Likewise, the FBI agent said that they would “never indict an innocent person.”  Not only is this not true (as the FBI has sought the indictment of innocent people), but it sounds like vouching for me.  The FBI agent said that none of the government’s witnesses lied under oath.  He also said “trust me.”  But, the First give it all a green light.

Finally, we have a prosecutorial misconduct argument.  As usual, the First lets it pass, but not before mentioning that 15 years ago it did provide new trials to defendants based on the government’s closing remarks.  Essentially, the AUSA seemed to make a lot of arguments during closing argument impugning defense counsel, and seemed to argue that the defendants should have subpoenaed witnesses that would exculpate him.

Now, perhaps the First Circuit’s near absolute refusal to do anything about what would seem to be a pattern of similar remarks is due to a fear that new trials will result in acquittals.  But, maybe there is a middle ground.  Perhaps District Courts should be required to hold full blowing hearings on each colorable allegation of prosecutorial misconduct during closing arguments.  Based on the parts of the parts of the transcript found in the record, I would say that such a hearing would last a day or two.  I don’t know if the District Court would find a poisoned well or not, but at the very least there would be a better record, and AUSAs would have a least some incentive to think before committing misconduct. 

The First Amendment rulings are sort of disturbing, as essentially insulated a judge’s ruling on what is relevant from publi scrutiny.  While it is unclear whether this is the case here, this would give the green light to the government to demand that rulings on relevancy objections to introduction of arguably exculpatory evidence be heard in private, so that – if they have, in the words of one prosecutor a “government’s judge”  – they can keep the public from knowing the defendant’s side of the story.