Why do some prosecutors engage in misconduct? Because they can. They have little, if any, concern that they will be punished if caught. It is a sordid feature of our criminal justice system about which we have often lamented (here). A recent case out of Puerto Rico, and heard by the First Circuit Court of Appeals, addressed prosecutorial misconduct and demonstrates the difficulty faced when attacking this insidious problem.


Located in Canovanas, Puerto Rico is the Jesus T. Pinero Public Housing Project. Jesus M. Diaz-Correa, Juan Santos-Rivera, and Jeffrey Carrasquillo-Ocasio were charged with operating a 24-hour “drug point” in the project. They were ultimately convicted of selling large quantities of cocaine and marijuana within 1,000 feet of a protected zone. Each received lengthy prison sentences. Diaz-Correa received the harshest sentence, 330 months, because he was also convicted of conspiracy to possess a firearm in “furtherance of drug trafficking crimes.”


A witness during the trial linked Diaz-Correa to a firearm by saying he saw a “bulge” under Diaz-Correa’s waistband. During his closing argument, defense counsel argued that the “bulge” could have easily been a cellphone, not a firearm. To rebut this argument, the prosecuting attorney went to the evidence table and selected a pistol that had been entered into evidence. However, there had been no evidence introduced that linked this particular pistol to Diaz-Correa.


“And let’s talk about the bulge,” the prosecutor told the jury. “You heard an argument that the bulge in the waist cover [was] a cell phone. Consider this, compare this cell phone with this pistol. And use your common sense.”


Defense counsel objected. The trial judge agreed the prosecutor’s use of the pistol was “inappropriate” and instructed the jury was not to consider it. The judge, however, let the prosecutor make the point that a cell phone was an unlikely cause for the bulge. The First Circuit Court of Appeals took the issue beyond the mere slap that the prosecutor’s conduct was inappropriate. On August 7, the appeals court issued a ruling, United States v. Santo-Rivera, characterizing the conduct as “prosecutorial misconduct.” The court defined prosecutorial misconduct as:


“The term ‘prosecutorial misconduct’ covers a broad swath of improper conduct by the state’s attorney that may impair an accused’s constitutional rights to a fair trial, such as commenting on an accused’s decision to remain silent, witness vouching, and introducing inadmissible evidence through cross-examination … In the closing argument context, a prosecutor’s remarks or actions are improper where they ‘serve no purpose other than to inflame the passions and prejudices of the jury, and to interject issues broader than the guilt or innocence of the accused.’”


The First Circuit said the prosecutor’s actions of removing the pistol from the evidence table and brandishing it before the jury in rebuttal was “obviously inflammatory” and could be characterized only as “prosecutorial misconduct.” However, following the lead of a 1983 U.S. Supreme Court precedent, the appeals court excused the misconduct because the Government had presented independent evidence of overwhelming guilt, thereby leading to the conclusion that the misconduct did not poison the well” to the point that it affected the jury’s verdict.


Thus, the First Circuit did not impose, or even suggest, any disciplinary sanction against the prosecutor.

In this case, there is no question that the prosecutors engaged in “misconduct” as defined by the courts. But the prosecutor was not sanctioned or even seriously reprimanded by the trail court or the court of appeals. The conviction was upheld and she escaped accountability.


The appeals court’s typical failure to impose some form of accountability offers a implied license to this prosecutor, and prosecutors across the Country, to continue the practice of misconduct  in order to secure criminal convictions.


The feature that disturbs us most in this case is the use of prejudicial remarks during the final closing arguments because it prevents any counter argument from the defense.   As the Court remarked, “We are particularly sensitive to inappropriate conduct during rebuttal when ‘the improper remarks [are] among the last words spoken to the jury by the trial attorneys.’”

Because the prosecution carries the “burden of proof,” it is given the last opportunity to rebut arguments made by the defense in its closing argument. Defense counsel here simply posited that the “buge” in Diaz-Correa’s waistband could have been a cell phone rather than a firearm. Defense counsel did not go through any elaborate illustration of this potential explanation. The prosecutor, however, walked to the evidence table and snatched up the first firearm available and urged the jury to compare it to a cell phone. The prosecutor knew that brandishing the weapon in such a manner before the jury was inflammatory, yet she chose to do it anyway.


At a minimum, we feel the First Circuit should have reversed Diaz-Correa’s firearms conviction. Hopefully, that would have brought his sentence in line with the sentences imposed on the other two defendants and sent a message to the prosecutor.  However, the refusal to reverse on the theory that the prosecutor’s misconduct did not affect the jury’s guilt decision is, we feel, absurd.