Friday, August 13, 2004

On conduct in closing argument

In U.S. v. Ollivierre, the Fourth Circuit in an opinion by Judge King overruled the various interesting arguments raised by the defendant that the prosecutor's closing arguments were improper.

The arguments at issue included these:

"I would submit to you, ladies and gentlemen, [Ollivierre] is trying to run today. With the help of his lawyer, he is still trying to hide from you." (the "Running Remark").

"I think sometimes when I am listening to the defense in their case, I am sure this is not their intent but it comes across sometimes as maybe to get you off track, to confuse you." (the "Off Track Comment").

"One of the things [Mr. Ollivierre’s counsel] made mention of was that there was no testimony about the distance between Ms. Caldwell and actually being able to see this leaning. Again, I remember her saying 12 feet, approximately 12 feet but again you recall. I remember her also saying there was nothing obstructing her view. Nothing. He doesn’t remember that. Of course, he has
selective amnesia because he is representing his client."
(the "Amnesia Comment").

"Mr. Ollivierre wants to now through his lawyer distance himself from the bag [of drugs] as he tried to distance himself from the scene." (the "Distance Comment").

"Again, the defendant is working with his lawyer in the trial of this cases [sic] and he certainly is innocent until proven guilty."

"There is an old saying that goes if the law is on your side, argue the law. If the facts are on your side, argue the facts. If neither is on your side, just argue." (the "Argue Comment").

"He quotes so many times in his argument. He quotes the law repeatedly but then he tries to weave in distorted facts to try to make his argument." (the "Distorted Facts Comment").

"You may hear that the government met with the witnesses and got them to say what they wanted them to say. We planned and orchestrated their testimony and that kind of thing. You may not hear that argument but you may. We submit to you, ladies and gentlemen, if we wanted to do that, we could have done a better job. We could have simply asked Ms. Caldwell to say ‘absolutely
no question, I saw Mr. Ollivierre with the package in his hands and gave it to [Snoop] and [Snoop] came and got in my car’; and for good measure, we could have said Detective Washington I want you to say the very same thing; that you saw Mr. Ollivierre give the package to [Snoop] and [Snoop] came and got in the car." (the "Suborn Perjury Comment").

"One of the things that I have come to, really had to get used to is sitting and listening to defense attorneys make arguments that are what I consider to be so incredible in light of the facts or the evidence presented in the case. This case is no exception. Another thing that I had to get used to is looking at defense attorneys and seeing how they can make arguments with a straight face in spite of the tremendous amount of evidence and to make statements like they do, like the government didn’t come
close to proving their case."

"I don’t want to insult your intelligence by again recapping absolutely everything, but he says that the government has no proof other than the flight information. Once again, that is just incredible that he can say that with a straight face, incredible." (along with the preceding comment, the "Straight Face Comments").

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