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In a decision that has gone unmentioned in the press, a federal appellate court hardly known for its leniency in criminal cases–the 5th Circuit–has reversed a child pornography conviction after finding a prosecutor’s repeated vouching for witnesses and his implication that the government only prosecutes guilty people constituted plain and reversible error.

The decision by George W. Bush appointee and one-time Supreme Court prospect Priscilla Owen is the second by the 5th Circuit arising from the same case in Tupelo in the Northern District of Mississippi. Read in conjunction the two opinions paint a picture of a prosecutor–unnamed in the 5th Circuit’s decisions but confirmed to the Open File by the clerk’s office as Assistant United States Attorney Paul Roberts–engaging in serious overreaching to compensate for weak facts.

In 2012 a jury found James William Smith guilty of downloading a number of child pornography videos from FrostWire, a peer-to-peer file sharing network. The jury’s conclusion came despite alibi testimony by Smith’s parents and by his girlfriend, Elizabeth Penix, that he had been away from his computer at the time the files were downloaded.

It was established at trial that the only other possible culprit who regularly used the computer was Smith and Penix’s roommate, Joshua Jolly. Jolly did not have an alibi for the time in question but he testified for the government, and said he had not downloaded the files and that he knew very little about computers. In a rare move, after the jury found Smith guilty, the district court granted his motion for acquittal based on a finding that the evidence was insufficient to sustain the verdict.

It was this Rule 29 judgment that led to the case’s first trip to the 5th Circuit. The government appealed the acquittal, and in 2014 the appellate court sided with the prosecution and reversed the district court’s ruling, holding there had been sufficient evidence for the jury to find Smith guilty. It remanded the case for sentencing.

After the lower court entered the conviction against him, Smith himself appealed, claiming that, at trial, AUSA Paul Roberts had made two different kinds of improper argument during his closing statements: first, repeatedly vouching for witnesses, and, second, claiming the government had no incentive to prosecute Smith if he weren’t guilty.

On the question of vouching, Smith pointed to the following statements by Roberts, which Owen enumerated in her decision.

(1) “Ms. Penix testified that it was not her. She is against child pornography. I’m totally convinced that that’s truthful.”
(2) “Mr. Jolly listened carefully to the questions and testified truthfully to what happened.”
(3) “I’ll try and suggest to you a number of reasons why I believe that he [Jolly] is worthy of believing.”
(4) “Unequivocally, truthfully, and corroborated by Ms. Penix.”
(5) “You’ve got to decide. And I think as you look at [Mr. Jolly’s] testimony, you can understand that when he testified he didn’t know anything about peer-to-peer networks and FrostWire, that he’s telling the truth.”

While the 5th Circuit panel described the final statement as a “closer call”, it found the first four statements were “plain error.”

We have repeatedly admonished that a prosecutor may not state, ‘The prosecution’s witnesses are telling the truth’ or ‘I believe that the prosecution’s witnesses are telling the truth.’ We have no difficulty in concluding that the…remarks quoted above constitute impermissible vouching.

Smith’s second claim of prosecutorial misconduct arose from a rhetorical question Roberts asked the jury in the same closing argument: “What incentive is there for us to come in and try a person if he’s not the person that did the offense? What incentive is there, on the other hand, to hold [the defendant’s alibi] until the last possible minute and bring it in uninspected?”

Owen and her colleagues were, if anything, more harsh in their response to this form of argument.

The Government does not attempt to defend this statement; nor can it…the prosecutor here effectively stated ‘that the Government prosecutes only the guilty.’ This particularly egregious form of argument has…been considered and condemned by this Court.

The power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says. That same power and force allow him, with a minimum of words, to impress on the jury that the government’s vast investigatory network, apart from the orderly machinery of the trial, knows that the accused is guilty or has non-judicially reached conclusions on relevant facts which tend to show he is guilty.

Beyond finding “plain error” the court had little trouble concluding that the error had indeed “substantially affected the fairness, integrity, and public reputation of Smith’s proceedings,” thus justifying a new trial.

Ironically, part of the opinion’s logic for this final conclusion–that the credibility of the witnesses Roberts vouched for was so central to the conviction that vouching for them justified reversal–rests on the very fact that the trial court had granted an acquittal for insufficiency of the evidence. Which is the judgment that the earlier 5th Circuit panel expressly reversed.

In an attempt to reconcile the two decisions, Owen’s opinion says that the prior appellate judgement was clearly in agreement that the issue of witness credibility “was crucial to Smith’s conviction.”

Between the two opinions, however, what we are left with is this: in a weak and circumstantial case, federal prosecutor Paul Roberts committed misconduct by blatantly vouching for witnesses in order to get a verdict in order to get a verdict that, initially at least, the trial court judge believed should not survive a motion for insufficiency of the evidence.

The consequences for Roberts? Apparently none. What the 5th Circuit has granted Smith is not an end to his prosecution but the right, instead, to be tried again.

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