"The government's appellate lawyer told us that the prosecutor's superior would give her a talking-to. We are not impressed by the suggestion."
It's not everyday you find the courts criticizing a federal prosecutor in a written opinion. Take it away Judge Richard Posner:
Because the government presented insufficient evidence that the defendant engaged in misbranding, he is entitled to be acquitted. But since there was insufficient evidence, why did the jury convict? Perhaps because of a series of improper statements by prosecutor Juliet Sorensen in her rebuttal closing argument, for which the government in its brief (which she signed) belatedly apologizes (belatedly because the government defended the remarks emphatically in the district court). The brief says that "the remarks which drew sustained objections were improper, because they cast the defendant's exercise of his constitutional right to counsel in a negative light."
Indeed they were and they did…. Since we are directing an acquittal on all counts, the sentencing issues are academic and we do not address them, beyond expressing our surprise that the government would complain about the leniency of the sentence for a crime it had failed to prove.
Read the rest of U.S. v. Farinella here (PDF).
[Thanks to Bob Ewing for the tip.]