“We Expect Better from an Attorney Representing the United States”

From US v. Khatallahdecided Tuesday by the DC Circuit (Judges Patricia Millett, Gregory Katsas, and Neomi Rao):

The court concluded that the sentence was “substantively unreasonably low in light of the gravity of his crimes of terrorism,” but also added this condemnation of the prosecutor’s statements in closing argument (while concluding that they were unlikely to have affected the verdict, and the verdict thus needn’t be set aside):

The Assistant US Attorney who gave the government’s closing rebuttal surely knew this longstanding and foundational rule of law. On top of that, the district court had previously ordered her not to refer to the United States Mission in Benghazi, Libya as “our” Mission. See Trial 4456 (Nov. 1, 2017, AM) (“[J]ust refer to it as the US Mission, okay?” “Yes, sir.”). The court had also specifically directed the prosecution “to avoid unnecessary or unnecessary uses of the term[ ] [terrorist]Yet in her closing rebuttal, the prosecutor brushed off the court’s orders. She began:

At this moment, I cannot tell you how proud I am to represent the United States of America and how honored I am to call the United States Mission in Benghazi ours. Yes, it is ours. And … Ambassador Christopher Stevens is our son. And brave American Sean Smith is an American son. And Glen Doherty and Tyrone Woods, Navy Seals, are our American sons.

And I cannot tell you how proud I am. And yes, they are ours. And the consulate and the other United States facility, the CIA Annex, that’s ours too. And I will take that to the bank, and I will take full responsibility for saying that is ours.

The prosecutor then turned to the defense’s argument that Khatallah had an innocent explanation for being at the Mission on the night of September 11th. She continued:

The defendant is guilty as sin. And he is a stone cold terrorist. Innocent presence? Innocent presence? … His hit squad was searing through the United States Mission, searing violently with rage—his rage against America, brandishing AK-47s, [rocket-propelled grenades] and all sorts of weapons to destroy usthose innocent men who are on the compound.

Khatallah’s counsel objected repeatedly.

The prosecutor again referred to “our American facilities” and “our Mission[,]”personalizing the charged crimes as attacks on the jurors and the prosecution. She accused Khatallah’s “hit squad” of “attacking” us[,]” and asked rhetorically”[w]hy are you attacking us?”

Later, the prosecutor turned to denigrating the written stipulations Khatallah had entered into evidence, and which the government itself had agreed were accurate. Those stipulations were the product of “lengthy negotiation[s]” between Khatallah and the government, and the parties had agreed to “a preamble that explained to the jury that the stipulations were summaries of classified information concerning the [Benghazi] attacks[.]”Because the defense lacked access to the underlying classified information, they did not know the sources behind the information and could not call them to testify.

The prosecutor nevertheless disparaged the stipulations as “words on a piece of paper” and unfavorably contrasted them with “witnesses who you can see … who have been cross-examined, who have been challenged.” Defense counsel objected, and the court said it would deal with the objections”[a]afterwards.” At a bench conference immediately after the government closed, Khatallah’s counsel lodged several objects and moved for a mistrial, asking the court to reserve its decision until after the jury verdict.

We expect better from an attorney representing the United States. See Berger v. US (1935) (although a prosecutor “may strike hard blows, [she] is not at liberty to strike foul ones”); US v. McGill (DC Cir. 2016) (per curiam) (“A just obtained outcome through a fair, evenhanded, and reliable process should be the government’s goal; it is not to win at any cost.”) (emphasis in original).

The “sole purpose of closing argument is to assist the jury in analyzing the evidence[.]“Yet here, the prosecutor repeatedly encouraged the emotion jury to ‘substitute for evidence[,]and she made an appeal to nationalism that was “wholly irrelevant to any facts or issues in the case, the purpose and effect of which [was] only … to arouse passion and prejudice.” In many regards, the prosecutor’s call to arms was similar to the closing speech of the Supreme Court found to be “highly prejudicial” in Viereck v. US. (1943). In that case, the government tried a registered German foreign agent during World War II for failing to divulge certain propaganda activity. In his closing remarks, the prosecutor told the jury that the “American people are relying upon you … for their protection against this sort of crime, just as much as they are relying upon the protection of the men who man the guns in Bataan Peninsula[.]”He then” call[ed] upon every one of [the jurors] to do [their] duty.” While the battles fought by the United States have changed, the law’s condemnation of such rhetoric has not.

The prosecutor here further erred by maligning the stipulations entered into evidence by the defendant. In the stipulations, which were based on classified sources, the government agreed that it possessed certain information or that a person known to the government would, if called to the stand, testify to certain facts. Especially because of the defense’s limited access to the classified information underlying the stipulations, and the government’s express to them, the prosecutor acted improperly in portraying the stipulations as untrustworthy and advising the jury to disbelieve them. Said another way, the prosecutor impermissibly and “intentionally misrepresent[ed] the evidence.” …

Still, not all prosecutorial misconduct justifies vacating a jury verdict. “A mistrial is a severe remedy—a step to be avoided whenever possible, and one to be taken only in circumstances manifesting a necessity therefor.” Here, if the prosecutor’s rebuttal substantially prejudiced Khatallah, a mistrial would be required. To assess whether the prosecutor’s rebuttal substantially prejudiced Khatallah, we consider “(1) the closeness of the case; (2) the centrality of the issue affected by the error; and (3) the steps taken to mitigate the error’s effects.” While we find the prosecutor’s rebuttal argument “deeply troubling,” the government has met its burden of showing that the wrongful remarks did not cause Khatallah “substantial prejudice.”

First, on the charges for which he was convicted, the case against Khatallah was not close. [For further details, see the opinion. -EV] …

Leave a Comment