Federal Judiciary

Fifth Circuit Reverses Conviction Due To Prosecutorial Misconduct

By Robert Loblaw

U.S. v. Gracia, 07-40245 (5^th Cir., March 31, 2008)

If this decision had come a day later, it might have been mistaken for an elaborate April Fool?s hoax. A unanimous panel of the Fifth Circuit has reversed a criminal conviction on the ground that the prosecutor used his closing argument to improperly bolster the credibility of government witnesses.

Defendant Apolinar Gracia Jr. was a passenger in a border-crossing Impala that contained 50 kilos of cocaine. The key issue for trial was whether Gracia knew that he was sharing a ride with a half a million dollars in drugs. And the key evidence was Gracia?s confession, which he made in front of two border control agents. The prosecution only had the agents? testimony on this issue, because the confession was not recorded, nor was there any written statement.

The prosecutor made four sets of comments to prop up the agents? testimony:

• telling the jury that the agents were “very, very credible;”
• asking rhetorically whether an agent “who has worked as a law enforcement agent for many years, that is his career, that is his chosen life, a man from this area, a man with a family, do you think that he would throw all that away by taking this stand and taking an oath and lying to you to get Mr. Gracia”; and whether the agents “would put their careers and criminal prosecution on the line for committing the offense of aggravated perjury;”
• stating, “I?m going to ask you to respect their efforts as law enforcement officials and to believe the testimony that they offered;”
• and telling jurors that an acquittal meant that the jury believed that the agents”got out of bed” on the day they arrested Gracia and decided that this was “the day that [they] were going to start [a] conspiracy to wrongfully convict Mr. Gracia.”

Gracia was convicted and he appealed, arguing that these comments violated his right to a fair trial. Because Gracia?s attorney did not make a proper objection, Gracia needed to establish that these comments were plain error requiring reversal. This is a high hurdle in any circuit, and in the Fifth Circuit? Good luck with that.

Not so fast, says the Fifth. The panel concludes that the bolstering seriously affected the “fairness, integrity, and public reputation” of Gracia’s trial. Writing for the Court, Judge Wiener writes,

Witness bolstering is particularly injurious when, as here, it involves the testimony of the only witnesses (and virtually the only inculpatory evidence) against a defendant. The testimony of the agents was the only evidence tending to prove Gracia?s knowledge of the presence of drugs in the car?s secret compartment. We cannot permit the prosecutor?s remarks to be swept under the rug by the broom of the harmless error doctrine. In this case, a slap-on-the-wrist in obiter dicta will not suffice.

In other words, “We?ve let you slide for long enough, folks. Time to get serious about seeking justice rather than seeking convictions.”

Full post as published by Decision of the Day on April 01, 2008 (boomark / email).