Mimesis Law
16 December 2019

So Guilty The Prosecutorial Misconduct Doesn’t Matter?

Sept. 25, 2015 (Mimesis Law) — The Ninth Circuit agreed the prosecutor went too far. The misconduct included misstating the law, misstating the defendant’s testimony, and improperly vouching for a witness. In its opinion, the court in State v. Flores explained some of what the prosecutor did as follows:

Flores testified that [Facebook] postings indicated only that she carried marijuana on June 21 from the United States into Mexico, not that she was about to smuggle marijuana from Mexico into the United States. In this appeal, she argues that the government committed misconduct by distorting her testimony in closing. For example, the prosecutor asked her, “so it’s undisputed that on the day of your arrest, you definitely brought drugs between the United States and Mexico” and “across the international border?” The prosecutor also asked Flores if it was “illegal” to bring marijuana into Mexico—a misleading question given that Flores was on trial for importation, not exportation.

And, after emphasizing that Flores admitted to “smuggling drugs,” the prosecutor argued during closing that Flores lied when she testified that the messages referred to exportation—not importation—of marijuana. Further, after acknowledging that Flores claimed she brought drugs to Mexico only, the prosecutor asserted, “[t]hat’s still smuggling drugs”—a supposed crime that was not charged. In her final line to the jury, the prosecutor emphasized: “She knows she was smuggling drugs on June 21st, 2012. You heard her say that repeatedly and that’s why she’s guilty beyond a reasonable doubt.”

Honestly, it’s hardly the worst thing I’ve ever heard of a prosecutor do. Sure, the crime was importation of marijuana, not exportation of marijuana. They are different crimes, and exportation was not one of the charges in the case of Citlalli Flores. There were, presumably, no drugs ever recovered from Flores’s alleged drug-running trip into Mexico, but she did get caught coming into the United States with 36.24 pounds of marijuana.

Knowing she admitted to moving drugs in one direction makes for decent enough material on cross-examination, but the prosecutor clearly wanted more. It’s not hard to see how it might be tempting to exploit the blurred line between an admitted but uncharged crime and the actual case at hand.

As the court explained, it’s fine for a prosecutor to argue a defendant is lying. It’s also fine to argue the inference that Flores’s Facebook messages about transporting drugs, ones Flores tried to have deleted after being arrested, referred not to smuggling drugs into Mexico, but to the attempted importation of marijuana during which she was actually caught. That’s not only fine, but probably the most reasonable inference given the facts. Things get a little hairy when the prosecutor crosses the line from tricky to excessively tricky, however.

Referring vaguely to an admission to “smuggling drugs” in a case where there is admitted conduct that fits under that umbrella but that isn’t part of the case, and where there is a denial of conduct fitting under that umbrella that is part of the case, is fairly misleading. It certainly suggests the admission is something it isn’t. The same is true of general questions about bringing drugs “between the United States and Mexico” and “across the international border,” as well as a question regarding knowledge of the illegality of very similar but uncharged conduct, though that alone would likely not bother the Ninth Circuit that much.

What surely pushed the conduct over the edge was the prosecutor characterizing Flores’s admitted conduct as “still smuggling drugs” and “why she’s guilty beyond a reasonable doubt” when it was not even part of the charged conduct. It’s a fairly obvious misstatement of the law as applied to the facts.

Unfortunately, none of it mattered:

In sum, while the government misrepresented Flores’s testimony and misstated the law on multiple occasions, in the context of the trial as a whole, it is unlikely that the jury was misled about the law or the facts.

Flores looked nervous when she went through the checkpoint. According to an agent, she was shaking and kept looking back towards the rear passenger-side of her car. Of course, that’s the sort of thing agents say all the time when they find drugs and want to justify the search, but there was a lot of marijuana in the car and Flores had written Facebook messages about smuggling drugs that day.

It was hardly the easiest case to defend, and the jury was instructed correctly even if the prosecutor did mess up a couple times. In other words, no harm, no foul. It’s called the plain error rule, and the court applied it because Flores’ lawyer didn’t object to any of the prosecutor’s misconduct. Flores had to show the prosecutor’s misconduct affected her substantial rights or the fairness, integrity, or public reputation of the proceedings.

A short but sweet dissent agreed there was misconduct but disagreed with the outcome:

I respectfully dissent. The Assistant U.S. Attorney violated the rules of permissible questioning and argument; forgot that our government’s interest “in a criminal prosecution is not that it shall win . . . , but that justice shall be done,” Berger v. United States, 295 U.S. 78, 88 (1935) (Sutherland, J.); and ignored Justice Sutherland’s admonition that a prosecutor “may strike hard blows, but not foul ones.” Id. These serious violations do not warrant invocation of the plain error rule.

What is perhaps the most interesting part about the case, especially the dissent, is the court’s consistent refusal to name the prosecutor. Sure, there was a lot to suggest Flores was guilty. Sure, the big picture may not have been as bad as the individual instances of misconduct make it seem. Maybe throwing out the conviction isn’t the right thing to do, but the court’s decision and its carefully chosen language allow the prosecution to avoid any real consequences altogether.

To give the government a pass for its lawyer’s misconduct, and then to give the lawyer herself not just a pass but the cloak of anonymity, does nothing to address what the court clearly believes to be a wrong. Citlalli Flores may be sufficiently guilty, and her trial generally fair enough, so that the prosecutor’s misconduct shouldn’t affect the outcome of her case, but that doesn’t mean the court should do nothing at all about it.

3 Comments on this post.

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  • SeanD
    25 September 2015 at 4:11 pm - Reply

    Per PACER the only AUSA named on this case is Michelle L. Wasserman from the San Diego office.

    • Windypundit
      25 September 2015 at 6:32 pm - Reply

      The original lower court case looks like it might have had a couple of AUSAs, but Michelle L. Wasserman is the one who gave the closing argument.

  • Still Writing… | Tempe Criminal Defense
    26 October 2015 at 3:06 pm - Reply

    […] Whatever you do, don’t name the misbehaving prosecutor or let the defendant get away with anyt… […]