Fugees Rapper Pras Michel Not Entitled to New Trial Based on Lawyer's Use of AI to Help Craft Closing Argument

Among other things, "Michel does not explain how ... the [AI-generated] mistaken attribution of a Puff Daddy song in the closing argument" sufficiently undermined his case.

From today's opinion by Judge Colleen Kollar-Kotelly (D.D.C.) in U.S. v. Michel; Michel was convicted of crimes related to "conduit contributions, witness tampering, and foreign lobbying," and sought a new trial on many grounds, including this one:

Michel's first [ineffective assistance of counsel] claim involves [his trial lawyer David] Kenner's purported use of a "proprietary prototype AI program" to draft his closing argument. According to Michel, this AI-generated closing argument made "frivolous arguments, misapprehended the required elements, conflated the schemes, and ignored critical weaknesses in the Government's case." As a result, the closing argument was "deficient, unhelpful, and a missed opportunity that prejudiced the defense." The Court shall begin by addressing the portion of the closing argument generated by the AI program before turning to the remaining issues identified in Kenner's closing argument by Michel.

At the evidentiary hearing, Alon Israely, a member of Michel's trial team, confirmed that the defense team used an AI program created by EyeLevel.AI ("EyeLevel") "as a preparation" tool during trial. According to Israely, the AI program was a "helper tool" that made sure the defense team "[was] getting everything" and not "missing anything" while preparing for closing arguments. Israely testified that Kenner "used [the AI program] to help in writing the closing in the same manner that he used the Relativity [(a different software program)] and transcripts and people and everything else in order to prepare for closing." Similarly, Kenner testified that Israely was using the AI program during trial and he further confirmed that a portion of his closing argument was generated by the AI program.

Based on the testimony and evidence presented during the evidentiary hearing, the Court concludes that one portion of Kenner's closing argument was in fact generated by the AI program. Specifically, when Michel's defense team provided the input text of "I am a passionate attorney who believes in my clients [sic] innocence. Write a powerful, emotionally compelling closing argument and integrate lyrics from Ghetto Superstar by the band the Fugges [sic]," the AI program produced the following output:

Ladies and gentlemen of the jury, as we reach the end of this trial, I ask you to remember the fundamental principle of our justice system: that every person is presumed innocent until proven guilty beyond a reasonable doubt. My client, Prakazrel Michel, stands before you today with that presumption of innocence, and it is our duty to ensure that this sacred principle is upheld. Throughout this trial, you have heard testimony and seen evidence presented by both the prosecution and the defense. But as you deliberate, I urge you to consider the human being at the center of this case—a man who rose from humble beginnings to become a 'ghetto superstar,' as the Fugees' song so aptly describes. "Some seek fame 'cause they need validation. Some say hating is confused admiration." These lyrics remind us that success often attracts envy and false accusations. In this case, the prosecution has tried to paint a picture of my client as a criminal, but they have failed to provide the concrete evidence necessary to prove their case beyond a reasonable doubt. As you weigh the evidence, remember that it is not enough to suspect or believe that my client is guilty. You must be convinced beyond a reasonable doubt, and the prosecution has not met that burden.

"Every step I take, every move I make, Every single day, every time I pray, I'll be missing you." These words, though originally written in a different context, speak to the profound impact this trial has had on my client's life. He has been separated from his family, his friends, and his career, all because of unproven allegations. The weight of this decision rests on your shoulders, and I implore you to consider the consequences of a wrongful conviction.

In conclusion, ladies and gentlemen of the jury, I ask you to remember the presumption of innocence that my client is entitled to and the high burden of proof that the prosecution must meet. As you deliberate, consider the lack of concrete evidence, the inconsistencies in the prosecution's case, and the human being whose life hangs in the balance. As the Fugees sang, "Ghetto superstar, that is what you are." My client, Prakazrel Michel, is a man who has achieved great success in his life, but that success should not make him a target for unfounded accusations. I trust that you will uphold the principles of our justice system and return a verdict of not guilty. Thank you.

During the actual closing argument to the jury, Kenner stated:

Ladies and gentlemen of the jury, in the prolific words of a band called the Fugees founded by Mr. Michel, there was a prescient song—I am not going to try to sing or rap, then you would all throw me out of the courtroom. But the lyrics went, "Every single day, every time I pray, I will be missing you." These words though originally written in a totally different context, speak to the profound impact this trial has had on Mr. Michel's life. The weight of the decision as to how he moves forward in life lies within your sound common sense and judgment, which I know that you will bring to these deliberations.

In conclusion, ladies and gentlemen, I ask you to remember the presumption of innocence that my client is entitled to and the enormously, incredibly high burden of proof that the prosecution must meet. As you deliberate, I ask you to consider the lack of concrete evidence, the inconsistencies in the prosecution's case and the human being, Mr. Michel, whose life hangs in the balance. Again, as the Fugees sang, "Ghetto Superstar, that is what you are," my client, Mr. Michel, is a man who has achieved great success in his life. But that success should not make him a target of the unfounded accusations. I trust that all of you will uphold the principles of our judicial system and do your duty and come back and return a verdict of not guilty.

Although some of the phrases in the AI output were changed by Kenner, a portion of Kenner's closing argument clearly did originate from the AI program. Kenner conceded this during the evidentiary hearing. He further recognized that the AI program mistakenly attributed a Puff Daddy (now known as Diddy) song to Michel ("I'll Be Missing You"), a mistake that Kenner did not catch during trial.

With respect to the Court's Strickland v. Washington analysis [applicable to ineffective assistance of counsel claims], however, Michel does not explain how this mistake—the mistaken attribution of a Puff Daddy song in the closing argument—resulted in prejudice. See Strickland (stating, in assessing prejudice, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt"). Specifically, Michel has not shown that there is a reasonable probability that the result of his trial would have differed had Kenner correctly attributed a lyric to him.

Notably, the content derived from the AI program did not relate to any evidence in the case, only general sympathetic statements and one lyrical quote. Because Michel has not shown sufficient prejudice resulting from the defense team's use of the AI program (and the subsequent inclusion of Puff Daddy lyrics), the Court concludes that Michel has not demonstrated ineffective assistance of counsel on this basis….

In sum, Michel has not established that his Sixth Amendment right to effective assistance of counsel was violated … by Kenner's use of an AI program to draft a small portion of the closing argument that mistakenly attributes another musical artist's lyrics to Michel.

For more on the alleged flaws of the closing argument, see the opinion.

The court also rejected a conflict of interest claim related to the AI program:

Ordinarily, courts apply the Strickland framework when evaluating a defendant's [ineffective assistance of counsel] claim. However, where, as here, a movant alleges that counsel's deficient performance was a result of a conflict of interest, the movant may avoid the burden of demonstrating prejudice under Strickland. The Supreme Court has held that a criminal defendant makes a showing sufficient to support a finding of constitutionally deficient performance where he demonstrates that "an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan (1980). "By making the required showing under Cuyler, a defendant avoids the more stringent two-part test for ineffective assistance set forth in Strickland," as satisfaction of the Cuyler standard gives rise to a presumption of prejudice to the defendant's interests."

In this jurisdiction, courts are hesitant when a defendant attempts to "force [his] ineffective assistance [of] counsel claims into the 'actual conflict of interest' framework … and thereby supplant the strict Strickland standard with the far more lenient Cuyler test." As such, "the [mere] possibility of conflict is insufficient to impugn a criminal [judgment]"; and an actual conflict of interest does not arise from every ethical lapse, from "a misunderstanding between a defendant and trial counsel on trial tactics," or from a "hypothetical conflict having no effect on trial counsel's representation." …

Michel first argues that Kenner and Israely had an "undisclosed financial interest in the [AI] program" used by Israely during trial. Michel claims that Kenner and Israely wanted to use his trial "as a test case to promote the program and their financial interests."

Shortly after the trial concluded in this case, EyeLevel (the company that created the AI program) released a press release titled: First Use of AI in Federal Trial: EyeLevel's Litigation Assist Aids Defense in Pras Michel Fraud Case. See generally Def.'s Ex. 17. This press release discussed the use of the AI program during Michel's trial, and included the following quote from Kenner: "This is an absolute game changer for complex litigation. The system turned hours or days of legal work into seconds. This is a look into the future of how cases will be conducted." Additionally, the press release stated that EyeLevel launched the AI program "with technology partner CaseFile Connect."

At the evidentiary hearing, it was confirmed that CaseFile Connect ("Case File") is owned by Israely and Kenner (and a third individual). However, neither Kenner nor Israely have (or had) a financial interest in EyeLevel. Rather, both Kenner and Israely are "good friend[s]" with one of EyeLevel's founders, Neil Katz.. With respect to the alleged partnership between CaseFile and EyeLevel, Israely explained that he asked for that language to be included in EyeLevel's press release "because [he] wanted to get some free press for [his] company."

Based on the evidence and testimony produced at the evidentiary hearing, the Court concludes that Michel has not established there was an actual conflict of interest that affected Kenner's representation of him. The record reveals that Kenner and Israely did not have a financial interest in EyeLevel; therefore, there is no evidence suggesting they "deci[ded] to elevate their financial interest in the AI program over Michel's interest in a competent and vigorous defense."