The Volokh Conspiracy

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"We Expect Better from an Attorney Representing the United States"


From U.S. v. Khatallah, decided Tuesday by the D.C. Circuit (Judges Patricia Millett, Gregory Katsas, and Neomi Rao):

Ahmed Abu Khatallah … was convicted on several counts related to his involvement in the September 11, 2012, terrorist attack on the United States' diplomatic outpost in Benghazi, Libya. He was sentenced to 22 years of imprisonment and five years of supervised release.

The court concluded that the sentence was "substantively unreasonably low in light of the gravity of his crimes of terrorism," but also added this condemnation of the prosecutor's statements in closing argument (while concluding that they were unlikely to have affected the verdict, and the verdict thus needn't be set aside):

Reviewing the record, we agree with Khatallah that the prosecutor's remarks were plainly improper and unbefitting a federal prosecutor. But because the misconduct did not substantially prejudice Khatallah, the district court did not abuse its discretion in denying the motion for a new trial….

The government does not contest, nor could it on this record, that the prosecutor's statements in her closing rebuttal crossed the line.

It is settled law that "a prosecutor may not use the bully-pulpit of a closing argument to inflame the passions or prejudices of the jury or to argue facts not in evidence." So during closing arguments, prosecutors may not sensationalize the facts or seek to turn jurors' perceived prejudices or favoritism against a defendant. Nor may the government weaponize a jury's allegiance to their Nation or incite jurors to protect their community or act as its conscience. The law also "universally condemn[s]" arguments that ask jurors to identify themselves with victims "because [they] encourage[ ] the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on evidence." When a prosecutor presses such an us-versus-them narrative in closing remarks to the jury, she walks a perilous legal line.

The Assistant U.S. Attorney who gave the government's closing rebuttal surely knew this longstanding and foundational rule of law. On top of that, the district court had previously ordered her not to refer to the United States Mission in Benghazi, Libya as "our" Mission. See Trial Tr. 4456 (Nov. 1, 2017, AM) ("[J]ust refer to it as the U.S. Mission, okay?" "Yes, sir."). The court had also specifically directed the prosecution "to avoid gratuitous or unnecessary uses of the term[ ] [terrorist]." Yet in her closing rebuttal, the prosecutor brushed off the court's orders. She began:

At this moment, I cannot tell you how proud I am to represent the United States of America and how honored I am to call the United States Mission in Benghazi ours. Yes, it is ours. And … Ambassador Christopher Stevens is our son. And brave American Sean Smith is an American son. And Glen Doherty and Tyrone Woods, Navy Seals, are our American sons.

And I cannot tell you how proud I am. And yes, they are ours. And the consulate and the other United States facility, the CIA Annex, that's ours too. And I will take that to the bank, and I will take full responsibility for saying that that is ours.

The prosecutor then turned to the defense's argument that Khatallah had an innocent explanation for being at the Mission on the night of September 11th. She continued:

The defendant is guilty as sin. And he is a stone cold terrorist. Innocent presence? Innocent presence? … His hit squad was searing through the United States Mission, searing violently with rage—his rage against America, brandishing AK-47s, [rocket-propelled grenades] and all sorts of weapons to destroy us, those innocent men who are on the compound.

Khatallah's counsel objected repeatedly.

The prosecutor again referred to "our American facilities" and "our Mission[,]" personalizing the charged crimes as attacks on the jurors and the prosecution. She accused Khatallah's "hit squad" of "attacking us[,]" and asked rhetorically "[w]hy are you attacking us?"

Later, the prosecutor turned to denigrating the written stipulations Khatallah had entered into evidence, and which the government itself had agreed were accurate. Those stipulations were the product of "lengthy negotiation[s]" between Khatallah and the government, and the parties had agreed to "a preamble that explained to the jury that the stipulations were summaries of classified information concerning the [Benghazi] attacks[.]" Because the defense lacked access to the underlying classified information, they did not know the sources behind the information and could not call them to testify.

The prosecutor nevertheless disparaged the stipulations as "words on a piece of paper" and unfavorably contrasted them with "witnesses who you can see … who have been cross-examined, who have been challenged." Defense counsel objected, and the court said it would deal with the objections "[a]fterwards." At a bench conference immediately after the government closed, Khatallah's counsel lodged several objections and moved for a mistrial, asking the court to reserve its decision until after the jury verdict.

We expect better from an attorney representing the United States. See Berger v. U.S. (1935) (although a prosecutor "may strike hard blows, [she] is not at liberty to strike foul ones"); U.S. v. McGill (D.C. Cir. 2016) (per curiam) ("A just outcome obtained through a fair, evenhanded, and reliable process should be the government's goal; it is not to win at any cost.") (emphasis in original).

The "sole purpose of closing argument is to assist the jury in analyzing the evidence[.]"Yet here, the prosecutor repeatedly encouraged the jury to "substitute emotion for evidence[,]" and she made an appeal to nationalism that was "wholly irrelevant to any facts or issues in the case, the purpose and effect of which [was] only … to arouse passion and prejudice." In many regards, the prosecutor's call to arms was similar to the closing speech the Supreme Court found to be "highly prejudicial" in Viereck v. U.S. (1943). In that case, the government tried a registered German foreign agent during World War II for failing to divulge certain propaganda activity. In his closing remarks, the prosecutor told the jury that the "American people are relying upon you … for their protection against this sort of crime, just as much as they are relying upon the protection of the men who man the guns in Bataan Peninsula[.]"He then "call[ed] upon every one of [the jurors] to do [their] duty." While the battles fought by the United States have changed, the law's condemnation of such rhetoric has not.

The prosecutor here further erred by maligning the stipulations entered into evidence by the defendant. In the stipulations, which were based on classified sources, the government agreed that it possessed certain information or that a person known to the government would, if called to the stand, testify to certain facts. Especially because of the defense's limited access to the classified information underlying the stipulations, and the government's express agreement to them, the prosecutor acted improperly in portraying the stipulations as untrustworthy and advising the jury to disbelieve them. Said another way, the prosecutor impermissibly and "intentionally misrepresent[ed] the evidence." …

Still, not all prosecutorial misconduct justifies vacating a jury verdict. "A mistrial is a severe remedy—a step to be avoided whenever possible, and one to be taken only in circumstances manifesting a necessity therefor." Here, if the prosecutor's rebuttal substantially prejudiced Khatallah, a mistrial would be required. To assess whether the prosecutor's rebuttal substantially prejudiced Khatallah, we consider "(1) the closeness of the case; (2) the centrality of the issue affected by the error; and (3) the steps taken to mitigate the error's effects." While we find the prosecutor's rebuttal argument "deeply troubling," the government has met its burden of showing that the wrongful remarks did not cause Khatallah "substantial prejudice."

First, on the charges for which he was convicted, the case against Khatallah was not close. [For further details, see the opinion. -EV] …