2013 Investigative Summary 2

Investigation of Alleged Improper Closing Argument

A court of appeals overturned the defendant’s convictions for insufficiency of evidence. In its opinion, the court harshly criticized the prosecuting DOJ attorney for her comments in rebuttal argument suggesting that, if acquitted, the defendant would be allowed to keep the ill-gotten gains from a fraud scheme.

The court of appeals noted that, by the time of trial, the defendant had accepted personal liability for the balance owed to the victim, had negotiated a repayment plan with the bank, and had already repaid a significant portion of the debt. The court further noted that the DOJ attorney herself had successfully moved in limine to exclude as irrelevant all evidence and arguments regarding the defendant’s efforts toward repayment. OPR conducted an investigation.

Based on its investigation, OPR concluded that the DOJ attorney committed professional misconduct by making an improper, misleading, and unfairly prejudicial reference in her rebuttal argument to a fact not in evidence -- that the defendant would be relieved of her obligation to repay the debt if acquitted -- in reckless disregard of her obligations under applicable state bar rules and case law.

The DOJ attorney asserted to OPR (among other things) that her rebuttal was an “invited response” to the defense attorney’s inflammatory closing argument. OPR concluded, however, that the DOJ attorney’s rebuttal argument was not logically or rhetorically responsive to the defense closing argument. As the DOJ attorney was aware, the defendant was legally liable for repayment regardless of the verdict and had in fact made a significant payment on the balance. OPR concluded that the rebuttal argument constituted professional misconduct under the circumstances.

The DOJ attorney retired prior to OPR issuing its final report. OPR referred its findings to the PRMU, which upheld OPR’s findings. OPR referred the matter to the appropriate state bar disciplinary authorities.