Case o' the Week: Weatherspoon, 9th Reverses for AUSA vouching

The third time was not the charm for Las Vegas AUSA Lahood, who gets reversed in this prosecutorial misconduct/vouching decision. United States v. Weatherspoon, __ F.3d __, 2005 WL 1052676 (9th Cir. May 6, 2005), available here. This is one of the best published decisions on prosecutorial vouching, and AFPD Jason Carr won on plain error review, to boot.

Players: Righteous win by Las Vegas AFPD Jason Carr. The third prosecutorial misconduct case in the 9th Circuit for AUSA Lahood.

Facts: Felon Weatherspoon was a passenger in a car stop and search that produced a gun. 2005 WL 1052676, *1. The other passenger and the driver inculpated Weatherspoon in written statements at the time of the stop. Id. One witness later recanted, the other described consideration/threats used to secure the statement. Id. At trial, the prosecutor repeatedly vouched for the cop witnesses, saying that they were credible. Id. at *2. He also argued that the officers would not risk their jobs by lying. Id. at *2. AUSA Lahood said that he didn’t believe a witness’s claim that he was threatened by the cops. Id. at *3. He assured the jury that the witness had actually told the truth when he inculpated the defendant during the stop, and before the grand jury. Id. Finally, Lahood reassured the jury that "convicting Mr. Weatherspoon is gonna make you feel comfortable knowing there’s not convicted felons on the street with loaded handguns . . . ." Id. at *5.

Issue(s): "We must [ ] determine at the outset whether the prosecutor made improper
statements during the course of the trial, after which we will turn to the effect of any such misconduct." Id. at *2.

Held: "As to the threshold issue of impropriety, we conclude that prosecutorial misconduct was clearly involved, both (1) because the prosecutor vouched for the credibility of witnesses and (2) because he also made arguments designed to encourage the jury to convict to alleviate social problems." "[W]e conclude that the prosecutorial misconduct here affected the jury’s ability to consider the totality of the evidence fairly . . . We therefore REVERSE for plain error and REMAND for retrial." Id. at *8.

Of Note: The opinion is laden with wonderful quotes – here’s one: "[W]e stress that the ethical bar is set higher for the prosecutor than for the criminal defense lawyer – a proposition that has been clear for at least seven decades." Id. at *5. The Court also wryly observes that this same prosecutor (AUSA Lahood) "has engaged in exactly the same kind of vouching conduct in two instances that has led other panels of this court to upset convictions obtained by that prosecutor." Id. at *5.

It is also remarkable that this case was reversed on a plain error analysis. Id. at *7. Thus, the opinion is of even greater value when objections to prosecutorial vouching are fully preserved.

Finally, note that the Court flatly rejects a "defense opening the door" justification for this impermissible vouching. Id. at *6.

How to Use: Weatherspoon is one of the most thoughtful opinions on prosecutorial vouching: it should earn an entry in every trial notebook. Obviously, use the case to identify and object to vouching in the AUSA’s closing arguments. Moreover, it may also be worth it to prophelatically brief Weatherspoon in in limine filings, to put the Court and government on notice that you’re aware of this type of misconduct – and that it may cost a reversal.

For Further Reading: Before Weatherspoon, the Nevada USAO had a press release touting AUSA Lahood’s prosecution of a defendant who got into a stand-off with police officers. Press release available here.

Will the USAO/DOJ now issue a press release describing Lahood’s third episode of prosecutorial misconduct in the Weatherspoon decision? Don’t hold your breath.

Steven Kalar, Senior Litigator ND Cal FPD. Website available at www.ndcalfpd.org.