Friday, November 7, 2014

Don't Expect a Perfect Trial; Just Hope for a Fair One

Unlike most criminal defendants in federal court, Joseph Farmer went to trial. Like most criminal defendants who go to trial in federal court, the jury convicted him. He appealed, raising three trial-related issues, and lost in a decision published this week.
The case involved a gun found in a vehicle following a traffic stop. Because Farmer was a felon, he could not possess the gun. He told the jury that it was not his gun and suggested that the cops planted it. There were a few problems to this story: (1) the gun was found under the driver's seat of his car, at a time when he was driving it; (2) when the officer was about to search in that general area, Farmer, seated in the squad car, honked the horn and yelled to the officer that the trunk might contain contraband; and (3) the squad car's video camera caught Farmer trying to convince the female passenger to "take the gun." Apparently thinking that the case was not as strong as it sounds, the government sought to introduce a 2010 gun conviction, under Rule 404(b), to show Farmer's knowledge of the gun in the car. And the district court allowed it over an unusual objection by the defendant. That objection sought to exclude the Rule 404(b) evidence because the seizure of the gun in the 2010 case violated the Fourth Amendment. The prosecutor also made some possibly-problematic comments during closing argument, telling the jurors that: (1) the officer had no reason to plant the gun or testify falsely; (2) when a defendant does not have the facts or the law on his side, he blames the cops; and (3) the defendant, who criticized the government for not doing fingerprint analysis on the gun, could have done his own fingerprint analysis.
The Court held that the district court erred on the Rule 404(b) issue when it determined that the defendant could not challenge the legality of the prior search and seizure. But then the Court found any error harmless in light of the substantial evidence against the defendant.
The Court also invoked harmless error on the closing argument issues. Sort of. But it also held that some of the comments were not improper (I think). This includes the prosecutor's "vouching" of the officer (see (1) above); those arguments were proper because of the defendant's claim that the officer planted the evidence. That makes sense.
The second set of comments -- no facts, no law, blame the cop -- were also not improper because they were "fair comment[s] on the evidence." At least not on plain error review. The Court does not exactly explain its conclusion on this one. I'm not sure I understand it. Let me know if you do.
The third set of comments -- the government's claim that the defendant could have tested the gun for fingerprints -- were actually held improper by the district court. But the district court refused to declare a mistrial because of them. The Tenth Circuit affirmed that finding, suggesting that the comments might not have even been improper. I'm not sure I understand that conclusion. The government, and not the defendant, has the burden of proof. The government's comments shifted the burden to the defendant. Right? In any event, the Court ultimately concluded that jury instructions on the government's burden and the presumption of innocence were enough to cure any error under an abuse of discretion standard.
Finally, the Court rejected a cumulative error argument, noting that, although the trial might not have been perfect, it was "a fair one."

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