Last Friday, I posted a note commenting on a case in which the Court held that a prosecutor "exceeded the limits of approved rhetoric." Today I found out about a case decided last Thursday in which Judge Posner demands that the Justice Department discipline a prosecutor for making false statements to the judge and improper statements during her summation to the jury.
In its brief to the Court of Appeals, the government appologized for the remarks to the jury and admitted that the comments "cast the defendant’s exercise of his constitutional right to counsel in a negative light.”
Writing for the Court, Judge Posner stated the apology was insufficient. In reviewing the prosecutors conduct, Posner stated that the trial judge "should have made clear to the prosecutor after sustaining the first objection that one more false step and he would declare a mistrial." Finding additional improper conduct, Posner warned that "had the government presented enough evidence to sustain a conviction, we would have reversed the judgment and ordered a new trial on the basis of the prosecutor’s misconduct."
Discussing what to do about the prosecutor's improper conduct, Posner concludes: "The government’s appellate lawyer told us that the prosecutor’s superior would give her a talking-to. We are not impressed by the suggestion." Evidently, Posner expects a lot more.
The opinion is available here.