[00:00:00] Speaker 02:
23-7042 the United States Congress and Miss Stengel may proceed.

[00:00:07] Speaker 00:
May it please the court Jessica Stengel on behalf of Mr. Bradley Morris.

[00:00:12] Speaker 00:
The Sixth Amendment guarantees the right to a trial by an impartial jury.

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If we think of this right as a three-legged stool, each leg plays a role independent of all the others, but depends on all three in order to sustain the right.

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Those three legs are an impartial jury, a group of folks that can decide the case solely on the evidence before it.

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Another leg of that right is the presumption of innocence, and the third leg

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of our right to a trial by jury is proof beyond a reasonable doubt.

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And proof beyond a reasonable doubt plays a vital role.

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It provides substance, concrete substance to the presumption of innocence and reduces the risk of factual errors being made within the context

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of the jury trial.

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Prosecutors, as representatives of the sovereign, occupy a unique and elevated space.

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They are not mere parties to the litigation.

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They are both administrators of and advocates for justice.

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Their job is to ensure that justice is done.

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And justice takes a two-fold appearance.

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It is both ensuring that the guilty do not escape and that the innocent do not suffer.

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And jurors have come to expect that prosecutors will discharge these obligations faithfully.

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Consequently, when prosecutors refer to matters not in evidence, misstate the law, misstate the evidence, ask the jury to act as the community conscience, those statements are apt to carry much weight against the accused when they should properly carry none.

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In rebuttal closing argument in this case,

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The prosecutor, with a single statement, managed to eliminate the entire Sixth Amendment right to a jury trial.

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The prosecution asks the jury, well, what does the US want from Mr. Morris?

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Well, the United States is asking that Mr. Morris stop sexually abusing his daughter.

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That's what we're asking today.

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Looking at that statement more carefully,

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Today implies that the United States has known about this conduct and is ongoing and needs the jury's help to do it.

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The statement implies that Mr. Morris is not guilty.

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Excuse me, he is not innocent.

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He is actually guilty and the jury can presume as much.

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Finally, that statement implies that the evidence can be disregarded, evidence of past conduct, the only purpose for which the jury has been assembled.

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Instead, the jury can now focus on specific deterrence and decide, based on a statement by the government, that their job is to prevent a future risk of harm, for which only the government knows about.

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There was no objection to the statement by defense counsel.

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That is correct.

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So we're, you know, once again on plain air.

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What's the best case where, if there is a plain air case, where we've found reversible air, harmful air in these circumstances?

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I think the court can look to two cases, quite frankly.

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The first being Mahorny v. Wallman.

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back in a prior century, but it's quite similar on its face.

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And then more recently, the court can look to United States versus Starks.

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And I believe that site is 34F41142.

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But I would have somebody check me on that one.

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And in Starks, we didn't have nearly as many misstatements, but they were just as severe.

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In Starks, the prosecutor overtly said, he's no longer presumed innocent.

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And what the court there did, just as the court in Mahorny did, is it said, okay, we have multiple misstatements.

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Now, some are harmful on their face.

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Some are probably more arguable.

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Let's put them together and see what we have.

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And we look at the condition and character of the evidence.

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And in both instances, the evidence was neither overwhelmingly supportive of or discrediting of

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anybody's statement.

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And here we have a situation similar to Mahorny, quite frankly, where we have the evidence is two people, the victim, BM, and the accused, Mr. Morris.

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All the other extrinsic evidence went to support the party's theory of the case.

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It did not touch or it did not support or discredit either party's testimony.

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And in that situation, when you have severe

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misconduct to the extent that it eliminates the Sixth Amendment jury trial right, this court has found error that is plain and has reversed.

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And if there are no further questions, I will reserve my time for rebuttal.

[00:05:15] Speaker 03:
Good morning, Your Honors.

[00:05:17] Speaker 03:
My name is Rob Wallace.

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I'm an Assistant United States Attorney in the Muskogee U.S.

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Attorney's Office.

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I represent the United States.

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And as a preliminary matter, I would like to point out that there is a typo in the brief that carries some weight.

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It's on page 25 in paragraph 2.

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The Tucker case is cited as a 10th Circuit case.

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It is, in fact, a 9th Circuit case

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And it was inaccurately cited, and I apologize for that.

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The standard we're here on today is a hurdle that Judge Temkovich, you have asserted in Vann in 2015.

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And that is that there is a very high hurdle when a jury has been properly instructed

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for prosecutorial misconduct rise to the level of something that requires reversal.

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And I would say today that the two-step standard that you have set in that case or that panel set, that the statements must be plainly and proper and they must affect substantial rights, is a significant hurdle.

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And I would state unequivocally that the government's position is that the statements complained of in the brief are in fact not plainly improper.

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I'd like to take the statements themselves in the order that the defense presents in their brief and address each of them individually, if I may.

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First of all, all of the complaints, all the statements that are complained of,

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were immediately adjacent to instructions from the court.

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Instructions that told the jury that the statements of the attorneys in the case are in fact not evidence and that the case must be decided by the jury on the evidence.

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In the preliminary instructions and in the final instructions prior to the closing, the jury was directed to the evidence in the case and specifically warned

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not to consider the things that the lawyer said as evidence in the case.

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They were instructed properly in the law.

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And the statements complained of occurred in very close proximity to those instructions.

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The statements specifically in the opening is what I'd like to move to first.

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Counsel argues in brief that

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that these were improper vouching on behalf of the government.

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And the complained of statements are statements where the prosecutor was attempting to provide process context to the jury.

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The prosecutor explained to the jury that detail in testimony points to credibility.

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That is a process statement.

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The second statement is similar in its nature, that detail lends itself to a credibility finding.

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The process statements, those first two, the prosecutor actually invokes the first person, which is to be avoided if possible.

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And it's a mannerism, clear from his argument, his statement, that it's something he fell into accidentally.

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Wouldn't you say that statement's improper, though?

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I'm convinced you'll find beyond a reasonable doubt that BM is telling the truth.

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I mean, isn't that as direct a witness vouching as one could

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come across?

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It's my recollection that that's the summary statement at the end of the opening statement.

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Is that a statement made in the context of, I believe that the detail is an indicator of credibility?

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It follows that.

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I believe that that statement is undoubtedly close to the railway line.

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And the fact that he invokes his person

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in the statement is troublesome.

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The Corleone case tells us that if that's a mannerism, then it's not necessarily an improper statement.

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What is a mannerism?

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A vernacular, something that the lawyer falls into.

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My style in trial tends to be very folksy.

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And so there are mannerisms in my speech that

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are things that are comfortable for me to say, things that might come out without an intentionality?

[00:10:21] Speaker 01:
I don't see how a mannerism can, I'm just accepting that they're assuming that this was a constitutional violation.

[00:10:31] Speaker 01:
I wouldn't think there would be any defense to it that that was just my mannerism and my folksy way of speaking.

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I think we have to disregard that and just look at what was said.

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the statement that you're gonna find evidence that is very particular.

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I mean, if he had said, you're gonna see from us evidence that is very particular, and you can consider that in determining how persuasive it is.

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I don't think anybody would quarrel that that was proper.

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So then the question is, he went a little bit past that.

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Is the little bit past it enough to satisfy a clear error test?

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respectfully or no.

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And the reason I would say that, and if I could defend myself on the mannerism for just a second, the Corleone case tells us that it's understandable that in the heat of battle sometimes people will fall into that which is comfortable.

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And the five of us and most of the people in this room have the

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ability now to calmly and collectively look at the record as a whole and make decisions.

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These were trial lawyers who were new to the Department of Justice who were in a relaxed or a less than relaxed setting, I should say.

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The statement, I believe, is the closest statement to something that is improper.

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And the I believe goes to the issue of the detail with which they were going to hear from this one witness, as counsel has described.

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And so, respectfully, no, the line is not crossed when it's not I believe her and you should too.

[00:12:26] Speaker 01:
Well, if you look at the definition strictly of vouching, this is a fairly easy case because vouching is a statement either that I have some private information that you don't have, which tends to support it, or I am telling you that I know this person and you should believe them.

[00:12:46] Speaker 01:
I'm not sure that either of those tests were met, but I don't know that that is the exclusive test by which we have to judge the propriety of these statements.

[00:12:57] Speaker 03:
Well, vouching specifically in the Anaya case was those two statements and also some indication that the prosecutor had information that the jury was not privy to and was arguing something of that nature.

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Here,

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In the roadmap he laid out for the evidence, which is how we're instructed to do this, he gave them not only the map of where he was going, and as counsel pointed out in the reply brief, 26 times he said the evidence will show.

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And then he made a summary statement at the end, which they also complained, giving them

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the destination he expected Matt to point to.

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And that was, I expect that once you've heard all this evidence, you'll be able to reach a verdict of guilty.

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In fact, he argued an expectation at that point.

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Again, statements that do not match the standard the court has previously provided with what is improper.

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And as a result, we believe the opening statements, the statements made in the opening statement, were not improper.

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And if they were, it did not impact substantial rights.

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And I will get to the substantial rights piece in just a moment.

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The rebuttal clause, first of all, all of the statements in the rebuttal clause are specifically refuting something made in defense counsel's closing argument.

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Now, we point out it was a very effective closing, very effective defense of the case, where the question of inconsistency in the testimony of the victim and questionable police work came together to form the core of the defense.

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The first of the rebuttal closed statements

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Council touched on in her three stools a three-legged stool analogy as what?

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Is the government going to do?

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at least three times in the closing council Asked that question what the government wanted to do.

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What was he to do?

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What does the government want from Mr?

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Morris you can find those in volume one at pages 880 881 and 884 and the a USA responds with

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stop committing the charged crime.

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That's what we expect.

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It's not an appeal to community conscience.

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It's not asking the jury not to let this person do this to anyone else.

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It doesn't seek any action from the jury.

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It doesn't look to, like any other prohibited statement in the case law supporting that.

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It is simply an answer to the defendant's question.

[00:15:53] Speaker 01:
Well, it's a statement that

[00:15:54] Speaker 01:
We want to fix it so that he will never abuse this girl again.

[00:16:01] Speaker 01:
But is that different?

[00:16:04] Speaker 01:
This is a troublesome case for me because it seems like we're

[00:16:08] Speaker 01:
I have trouble deciding how that would be different from a statement the government is asking that you find him guilty and let the judge sentence him appropriately.

[00:16:20] Speaker 01:
That wouldn't be an inappropriate statement.

[00:16:23] Speaker 01:
How is the essence of that, which means we're trying to get him incarcerated, how is that different from, I mean you're going to agree with this of course,

[00:16:37] Speaker 01:
I don't know.

[00:16:39] Speaker 01:
I mean, in the format of it, I read it and I say, I wouldn't have argued it that way.

[00:16:48] Speaker 01:
How far does that go in the standard that we have to review in this case as reversible error?

[00:16:55] Speaker 03:
Your Honor, I can't disagree.

[00:16:57] Speaker 03:
I have a six-handle on my page now, and I've been doing this a long time, and I can't tell you that I would have argued this case the way that this AUSA argued it.

[00:17:06] Speaker 03:
It was within the bounds of perceptible argument in that she was doing exactly what you just described.

[00:17:14] Speaker 03:
She was saying, we expect you to convict this defendant.

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And it was not, we need you to serve as the community's conscience to stop this monster from committing additional acts.

[00:17:28] Speaker 03:
It was limited to, we want him not

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to harm this defendant.

[00:17:33] Speaker 01:
It should be self-evident that the government wants you to convict him.

[00:17:36] Speaker 01:
We wouldn't have brought the case if we didn't.

[00:17:39] Speaker 01:
Yes, Your Honor.

[00:17:39] Speaker 01:
That is just something that everybody knows that in a trial.

[00:17:43] Speaker 03:
Yes, Your Honor.

[00:17:45] Speaker 03:
I don't disagree with that at all.

[00:17:47] Speaker 03:
The additional statements that were made by the AASA, and I see that my time is running short, each respond to specific arguments that were made, and I can

[00:18:00] Speaker 03:
conceive of how this happened mechanically, notes were being made during the closing, and the rebuttal close followed those notes in the way that they were argued.

[00:18:10] Speaker 03:
The question of whether or not there was a shift of the burden of proof, there's nothing in the record that indicates that this AUSA lowered the standard at all or shifted the standard at all.

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She argued against the idea that there was some dearth of evidence in the case by saying counsel has argued that there was inadequate or insufficient evidence and has argued to the jury that the

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standard could not be met by the simple testimony of the victim.

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That's not an effort to shift the burden of proof.

[00:19:02] Speaker 03:
That's not an effort to lower the standard of what the government had to meet.

[00:19:06] Speaker 03:
It was a statement that there is evidence in this record that is sufficient, setting straight an argument that counsel had made.

[00:19:14] Speaker 00:
Counsel, could I get you to address substantial rights?

[00:19:18] Speaker 03:
Yes ma'am.

[00:19:19] Speaker 00:
In your 58 seconds.

[00:19:21] Speaker 03:
Well, and I would do it this way.

[00:19:26] Speaker 03:
The word count in the transcript of this case has in excess of 106,000 words in it.

[00:19:33] Speaker 03:
And if you account for the line numbers, the style, and the certificates, we're still somewhere in excess of 80,000 words in the case.

[00:19:46] Speaker 03:
And we're arguing about something on the order of 200 words

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So in the grand scheme of the case and whether or not this defendant got a fair trial, we're arguing about 3 tenths of 1% of what the jury heard in the case.

[00:20:04] Speaker 03:
It's hard for me to say that the isolated instances that are complained of impacted the fairness of the entire trial.

[00:20:15] Speaker 03:
And so that's how I would address that issue.

[00:20:17] Speaker 03:
And I see that I'm out of time.

[00:20:20] Speaker 03:
Council, we have some rebuttal.

[00:20:26] Speaker 00:
I do.

[00:20:26] Speaker 00:
Just a few points, Your Honors.

[00:20:28] Speaker 00:
I'm going to begin with jury instructions.

[00:20:30] Speaker 00:
The government's brief and today they've argued again that jury instructions are sort of the balm to cure all.

[00:20:37] Speaker 00:
There are three reasons to reject this approach.

[00:20:40] Speaker 00:
First of all,

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Jury, the presumption that jurors follow instructions are just that, a presumption, as this court noted in Starks.

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And the Supreme Court noted in Richardson versus Marx that this is a presumption born out of practicality rather than reality.

[00:20:57] Speaker 00:
The second reason is that, yes, the jury was instructed, but the instructions of relevance were that the jurors were not supposed to follow parties' arguments.

[00:21:08] Speaker 00:
There was nothing specifically telling juries

[00:21:11] Speaker 00:
to ignore misstatements of law.

[00:21:12] Speaker 00:
So that error went uncorrected in this trial.

[00:21:16] Speaker 00:
And then third of all, if jury instructions really were the panacea, there would never be prosecutorial misconduct.

[00:21:25] Speaker 00:
And related to the jury instructions, the government today argues that they were immediately adjacent to all of the misstatements.

[00:21:34] Speaker 00:
That is fundamentally incorrect.

[00:21:37] Speaker 00:
The jury was instructed there was opening statements, absolutely.

[00:21:40] Speaker 00:
Evidence closed, the jury was instructed, then the government had its first closing statement, the defense responded, and then finally we have the government in rebuttal closing arguments where the majority of the misstatements occurred, and arguably the most severe misstatements occurred, and as this court noted in Starks,

[00:21:59] Speaker 00:
Timing matters.

[00:22:00] Speaker 00:
And I'd rather quote it that one of the last things the jury heard before retiring to deliberate the misstatements, one might reasonably have concerns that the timing of this misstatement could magnify its prejudicial effect.

[00:22:16] Speaker 00:
And supporting that, the court then starts in a footnote says, indeed, empirical research suggests that statements made in closing argument

[00:22:27] Speaker 00:
including as here improper comments or misstatements of law are likely to have an outsize effect due to their temporal proximity to jury deliberations.

[00:22:38] Speaker 00:
Then with regard to the

[00:22:41] Speaker 00:
obvious misconduct that occurred in opening statements, the government says now that these are process statements.

[00:22:47] Speaker 00:
It did not argue that in its responsive brief.

[00:22:50] Speaker 00:
And the fact that these lawyers were new to DOJ is irrelevant to the consideration of prosecutorial misconduct.

[00:22:58] Speaker 00:
With regard to closing argument, the government in its brief and again today argues that this

[00:23:05] Speaker 00:
you know, we're allowed to do an eye for an eye type of justice and the rebuttal closing argument was simply responsive to what defense counsel argued.

[00:23:14] Speaker 00:
That approach requires a very myopic view of the record.

[00:23:19] Speaker 00:
What really, the appropriate unit of analysis should be closing arguments in its entirety.

[00:23:24] Speaker 00:
So we look to see what the government argued in closing.

[00:23:28] Speaker 00:
And with regard to what Mr. Morris has identified as probably the most harmful statement that

[00:23:35] Speaker 00:
the jury needs to protect BM and prevent Mr. Morris from abusing her, the government opened that door in its closing argument.

[00:23:41] Speaker 00:
I have it on page 682 of the record.

[00:23:46] Speaker 00:
The government says, defendant sat up here and testified this morning.

[00:23:50] Speaker 00:
His attorney carefully asked him about each count of the indictment.

[00:23:55] Speaker 00:
Did you really count one?

[00:23:56] Speaker 00:
Count two, count three, count four.

[00:23:58] Speaker 00:
Mr. Morris addressed the government's

[00:24:03] Speaker 00:
calling him out in his closing argument.

[00:24:06] Speaker 00:
And as counsel today noted, it was quite effective.

[00:24:11] Speaker 00:
Ethicacy of defense closing argument does not allow improper statements, even under this sort of invited error approach.

[00:24:21] Speaker 00:
I think it was Justice Brennan said in his concurrence in United States versus Young, Young excuse me, that this sort of

[00:24:29] Speaker 00:
This smacks of the sporting theory of justice back in the days when it was plans fighting about who was going to win it all.

[00:24:37] Speaker 01:
Well, but we're dealing with it.

[00:24:40] Speaker 01:
We're dealing with a plain error review here.

[00:24:42] Speaker 01:
Is that correct?

[00:24:43] Speaker 00:
We are, Your Honor.

[00:24:43] Speaker 00:
And this part has dealt with that many times before.

[00:24:45] Speaker 01:
To me, that does change things.

[00:24:47] Speaker 01:
I mean, you do say you can't ask whether the defense argument mitigates improper statements by the government.

[00:24:57] Speaker 01:
Ordinarily, I would agree with that.

[00:25:00] Speaker 01:
But in a plain error question, we have to ask if there was, if it resulted in a

[00:25:06] Speaker 01:
substantial question of error that might have affected the outcome.

[00:25:10] Speaker 01:
And considering that, can't we look at the effectiveness of the defense rebuttal?

[00:25:15] Speaker 00:
No, Your Honor, you can't.

[00:25:16] Speaker 00:
Why?

[00:25:16] Speaker 00:
Invited error is a very well-known standard of review.

[00:25:19] Speaker 01:
I'm not talking about invited error at all.

[00:25:22] Speaker 01:
I'm talking about just looking at whether this was prejudicial error.

[00:25:26] Speaker 01:
And in terms of prejudicial, don't we look at, I mean, all the time we say it is or wasn't prejudicial, because look at all the other evidence, one way or the other.

[00:25:34] Speaker 01:
We look at the entire record, and the defense's argument is part of that entire record.

[00:25:39] Speaker 00:
It is part of the record, but you look at the actual evidence adduced, not argument.

[00:25:44] Speaker 00:
And we expect juries to follow that basic instruction as well.

[00:25:47] Speaker 00:
And despite 100,000 words, I wouldn't argue that words are not, again, the correct unit of analysis.

[00:25:53] Speaker 00:
And I think this court made that clear in Christie.

[00:25:56] Speaker 00:
where they said, okay, we have plain error, there are misstatements, but let's look at the overwhelming inculcatory evidence.

[00:26:03] Speaker 00:
They had over 1,000 pages of testimony from 14 witnesses over six days, and Christie was able to detail the actual inculcatory evidence that went directly to the elements of the crime.

[00:26:16] Speaker 00:
Here we have, again, two witnesses and all of the extrinsic evidence, just as it was in Mahorny and just as this court found in Starks, neither supported nor discredited either witnesses' version of events.

[00:26:33] Speaker 00:
I think, out of an abundance of caution, I will submit the case and thank the court for its time.

[00:26:41] Speaker 02:
Thank you, counsel.

[00:26:41] Speaker 02:
We'll accept the submission.

[00:26:43] Speaker 02:
And it is so.

[00:26:44] Speaker 02:
Counsel is excused.