US v. Carpenter, Nos. 06-1373, 06-1374, 06-1488. For awhile, I have been saying that the First was way to complacent about prosecutors using inflammatory language during closing argument. Well, in a white-collar trial a District Court judge had enough, and granted a motion for a new trial. The government affirms on appeal. It had argued that there was no contemporaneous objection, and the defendants earlier objections were only to admission of evidence, not argument. Looking at new FRE 103(a), the First (with a dissent) finds that renewals of objections are generally not required. The majority notes that the District Court is in a "superior position" to understand whether there really was an objection. And so, "Because the government repeatedly referred to gambling in a pejorative sense in its closing arguments, despite the district court's explicit warning against distracting the jurors from the elements of the crimes charged, we agree with the district court that the prosecutor's gambling arguments were improper." Sure, this isn't really the stinging rebuke of the government's conduct during closing arguments, and sure it required the District Court to lay out its problems in advance, but it is a start, and the motion for a new trial (which is a discretionary call) was upheld.
Judge Lynch concurs to say what matters is the effect on the jury of improper remarks. Not individual fault, and the District Court was in the better position to do right.
However, the defendant tried to appeal a motion for a judgment of acquittal. The First says it doesn't have jurisdiction, and this doesn't fall within the exceptions for denials of motions to dismiss on double-jeopardy grounds. There is a nice discussion of the issue here, which shows that some law clerk did a good job before he goes to other things.
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