2022 Investigative Summary 11

INVESTIGATION OF ALLEGED MISCONDUCT DURING A REBUTTAL CLOSING ARGUMENT

A U.S. Attorney’s Office advised OPR that a district court had granted a defendant’s motion for a mistrial with prejudice after an Assistant U.S. Attorney (AUSA) allegedly misstated the evidence during his rebuttal closing argument and argued to the jury that he knew beyond a reasonable doubt that the defendant was guilty and that defense counsel knew their client was guilty.  The court concluded that the AUSA’s conduct was intentional because the AUSA must have known that his rebuttal arguments were improper and were likely to cause the defense to request a mistrial.  OPR initiated an inquiry, which it later converted to an investigation.  OPR concluded that the AUSA violated the rules of professional conduct in reckless disregard of his obligations.  OPR concluded that the AUSA, as an experienced prosecutor, knew that it was improper to make the rebuttal arguments at issue, and he should have asked his co-counsel to deliver the government’s rebuttal argument once he recognized that he was not capable of doing so in a professional and appropriate manner.  OPR referred its findings to the Professional Misconduct Review Unit, which subsequently affirmed OPR’s findings and conclusions and authorized OPR to refer the AUSA to the appropriate state attorney disciplinary authorities, which OPR has done.  The AUSA subsequently resigned from the Department.