Ninth U.S. Circuit Court of Appeals Chief Judge Alex Kozinski wrote a sharply worded opinion that rebuked the Hawaii U.S. Attorney’s Office for its conduct in a 2007 criminal case, The Honolulu Advertiser reported today.
Kozinski wrote that Special Assistant U.S. Attorney Gabriel Colwell inappropriately questioned defendant Rex Harrison during cross examination, according to the newspaper. Colwell was detailed to the office from the military as a Special Assistant U.S. Attorney to the Hawaii office, the paper reported.
Harrison, a civilian contractor who installed secure computer networks on military bases, was convicted on two counts of assaulting military officers and sentenced to two years in prison. The judge overturned one of the counts, vacated Harrison’s prison sentence and sent the case back to the U.S. district court, according to The Advertiser.
“It’s black letter law that a prosecutor may not ask a defendant to comment on the truthfulness of another witness … but the prosecutors here did just that,” Kozinski wrote, adding that the questions were not “isolated incidents.”
Ninth U.S. Circuit Court Judge Jay Bybee was even more critical. In a dissenting opinion, the former Bush Justice Department Office of Legal Counsel chief — who’s been under his own ethics cloud for his role in authorizing brutal interrogation techniques — wrote that the entire case should be overturned.
The “outrageous behavior of the lead prosecutor” in the case was “so extensive that summarizing it all is no easy task,” Bybee wrote, the Advertiser reported.
“We do not permit attorneys to support or undermine witnesses by either vouching for their veracity (“Brutus is an honorable man”) or branding them unreliable (“All Cretans are liars”),” Bybee’s opinion said.
The office of U.S. Attorney Edward Kubo “conceded the impropriety” of the prosecutor’s questions in the appeal, Kozinski wrote but noted that Colwell and his co-prosecutor were on loan from the military, the opinion said.
“That’s no excuse at all,” Kozinski wrote. “When the United States Attorney endows lawyers with the powers of federal prosecutors, he has a responsibility to properly train and supervise them so as to avoid trampling defendants’ rights.”
