On several occasions recently, the Seventh Circuit has been critical of statements made by prosecutors to jurors. (See, for instance, my posts here, here, and here.) Another questionable comment by a prosecutor was the subject of this week’s decision in United States v. Myers (No. 07-3658) (Manion, J.).
Myers was tried on arson charges. During closing arguments, defense counsel highlighted the fact that gasoline was not found by investigators on the floor of the building that Myers allegedly burned down. In response, the prosecutor stated:
[A]ny speculation on the part of [defense counsel] about why or why there wasn’t gasoline can be easily explained by the fact that there were firefighters that were in there that night trying to extinguish that fire with water. Water has a tendency to sweep through and remove all sorts of different things that might have been on the ground. So, ladies and gentlemen, that’s an easy explainable different part of what [defense counsel] was trying to suggest.
On appeal following his conviction, Myers challenged this statement as prosecutorial misconduct.
In addressing Myers’ argument, the Seventh Circuit noted that the government was free to argue “the mere possibility that water could have cleaned or diluted the surface of the carpet.” The problem was that “the government did not couch its argument in such hypothetical terms.”
The Seventh Circuit observed:
[T]he government stated that the absence of gasoline was “easily explained” by the water from the fire hoses and that water “has a tendency” to “remove all sorts of different things” from the ground. In other words, the government may have crossed the line from suggesting that such a hypothetical event occurred to vouching for the fact that it did occur.
Although the court seemed uncomfortable with the prosecutor’s statement — “this remark would have been better left unsaid” — the court nonetheless affirmed Myers’ conviction because Myers was unable to demonstrate prejudice. The evidence against him was strong, the questionable statement was only tangential to the government’s case, and Myers’ lawyer invited the remark by arguing the absence-of-gasoline point — all of these considerations cut against him in the prejudice analysis.
Other new opinions in criminal cases this past week were:
United States v. Huffstatler (No. 08-2622) (per curiam) (affirming sentence in child pornography case).
United States v. Cole (No. 06-2547) (Sykes, J.) (affirming validity of appeal waiver and dismissing appeal).
United States v. McGraw (No. 08-2705) (Sykes, J.) (affirming decision that defendant voluntarily consented to search).