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Improper Closing Argument– prosecutor’s misstatement of law requires reversal of second degree murder conviction in sharply-divided opinion: United States v. Williams, _ F.3d _ (D.C. Circuit, No. 12-3029, September 2, 2016)




On appeal, Williams maintained that the evidence  was  insufficient  to  convict  him  of  murder and that  a  prosecutorial  misstatement  of  law  during  closing  argument  substantially  prejudiced  his  trial. He   further  challenged several evidentiary  rulings  by  the  district  court  and asserted various  other  alleged  prosecutorial  errors.  A split panel Circuit rejected all claims other than the one focusing on the closing argument, of which more momentarily. Readers interested in the law governing appellate review of insufficiency of evidence claims, MEJA issues, and the mental state required to be convicted of murder are urged to read Judge Griffith’s masterful discussion at pages 7-16 of the Slip Opinion. One such example is the law applicable to resolving questions that arise “‘[w]hen the  existence  of  an  object,  condition,  quality,  or  tendency at a given time is in issue,’” in which case “its ‘prior existence’ can indicate  that it ‘persist[ed] or  continu[ed] at  a  later  period.’” (Slip Op. at 10-11) (quoting United  States  v.  Stuart-Caballero, 686 F.2d  890,  893  (11th Cir. 1982) (internal citation omitted) (emphasis original).

The key issue over whether the Government’s rebuttal closing argument had tainted the murder conviction (but not the witness tampering charge) divided the panel sharply. Judge Griffith found prejudicial error (Slip Op. at 17-31), Circuit Judge Kavanaugh specifically agreed on that point (Slip Op. at 1-3) (Kavanaugh, J., concurring), and Circuit Judge Henderson issued a strongly worded partial dissent. (Slip Op. at 1-264) (Henderson, J., concurring in part and dissenting in part).  The error in the closing argument here was not of the usual genre: no vouching, no inflammatory remarks, no flagrant misstatement of the evidence. Rather Judge Griffith explained that “the government misstated the law in its closing argument.  Because the misstatement  implicated a  central  issue—the  state  of  mind  with  which  Williams  acted —and  was  not  sufficiently  cured,  it requires reversal of Williams’s murder conviction.” (Slip Op. at 16-17).

At trial everyone agreed on a jury instruction that he defense of consent is not available for   homicide   or   involuntary   manslaughter. They differed over whether the jury could consider Johnson’s consent to the jump-in on the issue of whether Williams had the necessary  malice aforethought to establish  the  crime  of  second-degree  murder.” The defense unsuccessfully contended that Johnson’s willing participation in the initiation should be considered by the jury in assessing whether Williams consciously disregarded an extreme risk to human life. (Id. at 17).

In closing defense counsel urged the jury that Johnson’s saying “yes, yes” when asked if the beating could continue was a factor that had to affect the state of mind of the person who supposedly murdered him. (Id. at 18). The prosecutor then countered over the defense’s strenuous objection that “It is no defense to second degree  murder or involuntary manslaughter, and you know what, the judge is going to tell you—[defense counsel] told you to  consider  it;  don’t  even  consider  it  because you can’t consider  it.  It is not  a  defense .  .  . . You can’t even consider it in his intent or anything else. You just cannot.” (Id.) (emphasis original).  Judge Griffith found that statement was error and the Trial Judge’s refusal to take any curative steps only compounded the error, for it “prevented the jury from considering crucial context  when  determining  whether Williams acted with malice aforethought.” (Id. at 19-20).

Judge Griffith explained that under United States v. Watson, 171 F.3d 695, 700 (D.C. Cir. 1999), an erroneous statement need not have been deliberate or made in bad faith. To warrant reversal an erroneous statement requires a showing of substantial prejudice under United States v. Straker, 800 F.3d 578, 620(D.C. Cir. 2015).  In turn, United  States v. Gartmon,  146  F.3d 1015, 1026 (D.C. Cir. 1998),  demands an examination of any curative steps taken by the trial court. (Slip Op. at 20).

Applying that test, the Government’s close was found prejudicial because it inaccurately “conflated two issues: (1) whether a victim’s consent can be a justification or excuse for the commission of a crime [it isn’t], and (2) whether it can bear on the presence or absence of an element of the crime [it may be].” (Id. at 21) (emphasis original). The distinction, Judge Griffith pointed out, is that “malice aforethought  was  an  element  of  the  crime  with  which  Williams  was  charged;  if  he  acted  without  this  state  of  mind,  he  could  not  have  been  guilty  of  second-degree murder.” (Id. at 21). To illustrate the point, Judge Griffith postulated a counterfactual: “what if, instead of repeatedly affirming that ‘yes,’ he wanted  to  continue  the  initiation, Johnson  had said ‘no,’ or ‘stop’?  Surely this evidence would  point in  favor  of  a  finding  that  Williams  consciously  disregarded  an  extreme  risk of  death  or  injury.” Thus “Johnson’s behavior was highly relevant—indeed, crucial—in determining whether   Williams was guilty of murder or manslaughter. As such, Williams was entitled to have the jury consider that evidence.” (Slip Op. at 23) (citing quoting  5  ORFIELD’S CRIMINAL PROCEDURE UNDER THE FEDERAL RULES § 30:23 (West  2016) (“Intent is  a question  of  fact  which  must  be  submitted to the  jury in the  light of all relevant evidence.”). Instead “the government characterized as  incorrect  the defense’s statement that Johnson’s behavior—his ‘yeses’—was probative of  Williams’s  degree  of  recklessness, and  further  suggested to the  jury  that  it  could  not  consider  this behavior  for  any purpose,” which was error. (Slip Op. at 24).

Looking to the context, even though the Government’s error was not a lengthy misstatement, “there is a  very  real chance  that  the  statement  led some  jurors  to  believe   they   could   not   consider   Johnson’s   consenting behavior  at  all,” for the district  court’s  administration  of  the  ‘consent  is  not  a  defense’  instruction,  after the  government inaccurately interpreted  it,  may  well  have left  jurors with the mistaken  impression  that  they  could  not  consider  Johnson’s  repeated  statements  that  he  wanted  the  initiation  to  continue.” (Id. at 25). And “[b]ecause the statement was made by the government, it carried particular weight,” the more so because it was delivered in rebuttal and bore on a central issue in the case. (Id. at 25-26). And perhaps most significantly, both the prosecution and the Trial Judge had characterized as “close” the question of whether Williams had crossed the line from manslaughter to second degree murder. ( 26). Under Circuit precedent “‘the danger that an error will affect the jury’s verdict’ increases significantly ‘in a case where the evidence at trial is conflicting.”” (Id. at 26-27) (quoting United States v. Smart, 98 F.3d 1379, 1392 (D.C. Cir. 1996)).

Concurring, Circuit Judge Kavanaugh described the dispute over the closing argument as “not a hard call.” Observing that “[t]he facts of the case fit the crime of  involuntary  manslaughter to  a  T,” he pointed out that “the Government charged Williams with second-degree murder, a more serious offense with much heavier punishment. The jury was instructed  on  both  manslaughter and murder, and  a critical issue  for  the jury to decide was  whether  Williams  was  guilty  of  manslaughter  or  murder. To  decide  between  the  two  offenses,  it  was  essential for  the jury to understand  the  difference between the two crimes.” (Slip Op. at 1) (Kavanaugh, concurring).

Dissenting in part, Circuit Judge Henderson wrote that “the prosecutor misstated nothing. The district court’s charge was correct   and   balanced. And   the   evidence   of   guilt   was   powerful.” (Slip Op. at 1) (Henderson, J., dissenting in part). Of plain importance to Judge Henderson was Williams’s behavior: after stomping on Johnson, he told the other gang members not to take him to the hospital, Johnson’s obvious trauma notwithstanding. And in the aftermath of the beating, he collected $600 in cash “dues” in the gang’s treasury, reportedly stating that “‘if anybody was going to come for anybody first, they were going to come for him, and he needed [the money] to get out of the country.’” (Id. at 2).

Focusing on the close and its effect on the murder conviction, Judge Henderson wrote that the majority failed to appreciate the scope of the defense argument. As she saw it, defense counsel had “also argued, incorrectly, that Johnson’s ‘consent’ could negate Williams’s criminal intent.” (Id. at 5).  When the prosecutor responded, she “did  not  tell  the  jurors  that  they  could  not  consider  Johnson’s ‘behavior’ or  his  ‘yeses.’ She said they could  not  consider  his  consent,” and “Johnson’s  consent—his  state  of  mind—had  nothing  to  do  with  Williams’s  perception  of  risk.” (Id. at 6-7) (emphasis original).  As Judge Henderson summarized the threshold point of whether the close was error, “contrary to the majority’s recounting, the prosecutor did not say that the jury ‘could not consider [Johnson’s] behavior for any purpose.’” (Id. at 8) (emphasis original).

Nor in Judge Henderson’s view did Williams suffer prejudice in light of what she saw as the Trial Judge’s fair instructions (Id. at 10-18) and the strong evidence of Williams’s callousness and mens rea, including his repeatedly punching the hapless Johnson in the face, the repeated blows and kicking after Johnson had fallen to the ground, and the length that this brutal initiation had continued, all of which made this jump-in stand apart from the norm. (Id. at 18-21). Seen in this light, “[a] gang leader who  had  delivered  a  severe  beating  with  eight other  men  for over six minutes would  not—unless  extremely reckless—rule  out  major  trauma. A reasonable jury could easily infer that Williams intended a serious injury because that is, after all, the natural and probable consequence of a serious beating.” (Id. at 21) (citing United  States  v.  Mejia, 597 F.3d 1329, 1341 (D.C. Cir.  2010)). This was all the more true if one considers “Williams’s  depraved  refusal of Johnson’s request for medical attention,” which Judge Henderson characterized as a “spectacularly mistaken” oversight by the majority, for it shed light on his intent in committing the underlying offense. (Slip Op. at 21).

A reader interested in the law governing closing arguments and instructions and the elements of homicide will find all three judges’ decisions thoughtful and instructive.

A.J. Kramer, Chief Federal Defender, and John Jeffress, who recently left the Federal Defender’s Office and joined Matt Kaiser’s firm, won a very difficult appeal in a tragic and emotionally charged case.

–Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.