“We Expect Better from an Attorney Representing the United States”
From U.S. v. Khatallah, decided Tuesday by the D.C. Circuit (Judges Patricia Millett, Gregory Katsas, and Neomi Rao):
Ahmed Abu Khatallah … was convicted on several counts related to his involvement in the September 11, 2012, terrorist attack on the United States’ diplomatic outpost in Benghazi, Libya. He was sentenced to 22 years of imprisonment and five years of supervised release.
The court concluded that the sentence was “substantively unreasonably low in light of the gravity of his crimes of terrorism,” but also added this condemnation of the prosecutor’s statements in closing argument (while concluding that they were unlikely to have affected the verdict, and the verdict thus needn’t be set aside):
Reviewing the record, we agree with Khatallah that the prosecutor’s remarks were plainly improper and unbefitting a federal prosecutor. But because the misconduct did not substantially prejudice Khatallah, the district court did not abuse its discretion in denying the motion for a new trial….
The government does not contest, nor could it on this record, that the prosecutor’s statements in her closing rebuttal crossed the line.
It is settled law that “a prosecutor may not use the bully-pulpit of a closing argument to inflame the passions or prejudices of the jury or to argue facts not in evidence.” So during closing arguments, prosecutors may not sensationalize the facts or seek to turn jurors’ perceived prejudices or favoritism against a defendant. Nor may the government weaponize a jury’s allegiance to their Nation or incite jurors to protect their community or act as its conscience. The law also “universally condemn[s]” arguments that ask jurors to identify themselves with victims “because [they] encourage[ ] the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on evidence.” When a prosecutor presses such an us-versus-them narrative in closing remarks to the jury, she walks a perilous legal line.
The Assistant U.S. Attorney who gave the government’s closing rebuttal surely knew this longstanding and foundational rule of law. On top of that, the district court had previously ordered her not to refer to the United States Mission in Benghazi, Libya as “our” Mission. See Trial Tr. 4456 (Nov. 1, 2017, AM) (
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