“Blatantly inappropriate” prosecutor conduct, but no remedy

The Sixth Circuit criticized prosecutor conduct in two published opinions this week, yet in each case, defendants didn't receive the remedy they wanted.

First, in Aguilar-Calvo, the court rebuked a prosecutor for making unfounded accusations about immigrants during a sentencing for illegal reentry by a previously deported felon. In particular, the prosecutor made the following argument in his sentencing memorandum:

Many citizens of the United States have grown impatient with their government’s seeming inability to deter undocumented immigrants, convicted of felonies in the United States and deported back to their home countries, from returning to the United States illegally. Those of us who are relatively more privileged may welcome the contributions of undocumented immigrants. Our neighbors who are less materially secure, however, who must compete more directly with undocumented immigrants for employment opportunities and social services, are not feeling so generous or welcoming. Those neighbors want our borders secured with physical barriers if our justice system does not suffice to enforce our duly enacted immigration policies. Those neighbors are impatient for action to protect their perceived economic interests, as promised by our duly enacted immigration policies.

The court called these arguments “blatantly inappropriate.” The problem wasn’t that the government discussed public opinion, it was that “the government believed it sufficient to argue for a lengthy prison term for Aguilar-Calvo based on its unsubstantiated belief that many people want our borders secured with physical barriers because immigrants are competing with them for employment opportunities and social services.”

The court nonetheless upheld Mr. Aguilar-Calvo’s sentence of 38 in prison consecutive to 8 months for a supervised-release violation because, it explained, the district court “explicitly disclaimed reliance” on the government’s arguments at sentencing.

Second, in Foster, the Sixth Circuit chided prosecutors for not honoring their obligation to “do justice” during Ray Foster’s drug-conspiracy trial. During trial, prosecutors violated Foster’s Confrontation Clause rights repeatedly, eventually resulting in a mistrial. As the Sixth Circuit summarized: “In all, the prosecution committed over a dozen similar violations on the first day of trial alone. Time and again, the prosecution would solicit from [a police officer] informants’ out-of-court statements about which [he] admittedly had no personal knowledge.”

Foster attempted to get a dismissal with prejudice, arguing that the prosecutor intentionally violated his rights. But the district court and Sixth Circuit disagreed. The Sixth Circuit held that, although "the prosecution fell well short of fulfilling its oath to respect Foster’s constitutional rights,” the prosecution did not intend to cause the mistrial, so “a second trial did not run afoul of the Double Jeopardy Clause.” Foster ultimately received a sentence of 180 months.

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