No decisions today in the Ninth, so heading to the Sixth Circuit.
In United States v. Acosta, --- F.3d ---, Nos. 18-5207/5212 (6th Cir. 2019), the Court vacated the defendants' drug convictions based on "flagrant misconduct" by the prosecution.
The opinion is worth a read, and it is a good reminder to object even during closing arguments.
First, there is a really helpful discussion of vouching. The Court finds that comments like: "he’s testified very well, he understood
and remembered everything he did" and he's "a fine young man" constituted improper vouching.
Second, the Court found improper the prosecutor's comments on credibility and assertion that a witness was lying. The Court held, "It is patently improper for a prosecutor either to comment on the credibility of a witness
or to express a personal belief that a particular witness is lying."
Third, the Court found the prosecutor committed serious misconduct in questioning one of the defendant's about his "worship of the Jesus Malverde statue."
"Here, the prosecutor did
more than “briefly highlight[] [Morales-Montanez’s] testimony” with respect to Malverde, as the
government argues; he also elicited testimony on Morales-Montanez’s Catholic beliefs and then
implied that Morales-Montanez was violating a biblical Commandment."
Thanks to John Ellis for alerting me to this case.
