2016 Investigative Summary 2

Investigation of Alleged Improper Bolstering of Government Witness; Improper Opening Statement; Improper Closing Argument

A court of appeals determined that a DOJ attorney:

(1) improperly bolstered the credibility of the government's immunized witnesses during his opening statement;
(2) introduced into evidence immunity agreements during the direct examination of government witnesses before their credibility had been attacked, and asked them during direct examination about the truth-telling provisions of their immunity agreements;
(3) made improper comments in his rebuttal closing argument by referring to his background in the local community, as well as to the consequences of the jury's verdict.

The court of appeals reversed and remanded the conviction because of the DOJ attorney's misconduct.

OPR initiated an inquiry, which it later converted into an investigation. OPR concluded that the DOJ attorney committed professional misconduct by acting in reckless disregard of his obligation not to vouch for the credibility of witnesses, when he repeatedly bolstered the government's immunized witnesses in his opening statement despite defense objections and the court's admonitions.

OPR concluded that the DOJ attorney did not commit professional misconduct or exercise poor judgment in eliciting testimony about the truth-telling provisions of the immunity agreements and by introducing into evidence the immunity agreements, in light of the absence of objections to his questions and the district court's rulings allowing the agreements into evidence. Finally, OPR concluded that the DOJ attorney made a number of mistakes during his rebuttal closing argument, but that he did not commit misconduct or exercise poor judgment. The DOJ attorney resigned from the Department during OPR's investigation.

Accordingly, the PMRU was unable to impose discipline. Because OPR's misconduct findings did not implicate state bar rules, the former DOJ attorney's misconduct was not referred to the applicable state bar.