Asserting Personal Knowledge

The web page of the Massachusetts Board of Bar Overseers reports on a public reprimand of a prosecutor:

On November 13, 2003, a jury trial was commenced in Norfolk Superior Court in a first-degree murder case against two co-defendants. The respondent was the assistant district attorney representing the Commonwealth.

The Commonwealth alleged that the two defendants shot and killed one man and severely injured another in retaliation for the killing of two members of the defendants’ gang. Two former gang members agreed to testify for the Commonwealth in exchange the Commonwealth’s agreement to recommend a reduced sentence on various charges, an agreement to not bring additional charges, and a nolle prosequi entered on murder charges. During the trial, their credibility became a key issue, and the defense vigorously attacked their veracity during closing arguments.

During the respondent’s closing argument, he made statements that improperly vouched for the credibility of these two witnesses. In one instance, the respondent told the jury that he did not offer one of the witnesses any deal until after he personally verified the witness’s account by following the route to the crime scene that the witness had described. The respondent improperly vouched for the second witness by telling the jury that the witness had turned his life around after serving time in a federal prison. The respondent told the jury, “And I spoke with [the witness], and I looked at him, and I looked at what he had become.”

The respondent also improperly implied to the jury that they should avenge the victims. At the end of his closing argument, the respondent told the jurors, “It is your turn to put in work”. This phrase, as explained during the trial, was used by gang members to connote a form of revenge.

The murder conviction of one co-defendant was appealed and overturned by the Supreme Judicial Court in Commonwealth v. Williams, 450 Mass 894 (2008). The court ordered a new trial due to the respondent’s improper closing argument.

By asserting his personal knowledge of the facts in issue and vouching for the credibility of witnesses, the respondent violated Mass. R. Prof. C. 3.4(e), 3.8(h) and (i) and 8.4(d). For urging the jury to put in “work,” implying to avenge the crimes, the respondent violated Mass. R. Prof. C. 8.4(d).

The matter came before the Board of Bar Overseers on the parties’ stipulation of facts and rule violations and an agreed recommendation for discipline by public reprimand. On May 11, 2009, the Board of Bar Overseers voted to accept the parties’ stipulation and to impose a public reprimand.

The case is Matter of Nelson, Public Reprimand No. 2009-13. (Mike Frisch)