Last week in United States v. McGee, Seventh Circuit Chief Judge Frank Easterbrook excoriated an unnamed federal prosecutor from the Eastern District of Wisconsin for presenting rank hearsay in the form of an agent's narrative summary. The defendant's extortion and bribery conviction was upheld under plain error analysis, but Easterbrook and the panel were clearly fed up with the AUSA's actions.

 

According to the opinion:

 

McGee’s principal argument is that the trial’s first day included a narration of his guilt based on hearsay—and that’s indeed what happened. An FBI agent told the jury that to obtain a warrant for a wiretap the prosecutor had to establish, to a judge’s satisfaction, that the telephone was being used to commit a crime. This recounted what a preliminary investigation had revealed and why the United States Attorney and high-ranking officials at the Department of Justice thought it enough to support audio interception of McGee’s phone calls. Then the agent explained that District Judge Adelman, who issued the warrant for the interception, agreed with this conclusion. The warrant, which recites some of this evidence (and the judge’s conclusion), was introduced into evidence. Before the trial was two hours old, the essence of the prosecutor’s case had been laid before the jury. And not a word of this evidence was from a witness with first-hand knowledge or subject to cross-examination. The process violated both the confrontation clause of the sixth amendment and the hearsay rule.

 

The Seventh Circuit prohibited such testimony four years ago and McGee's trial took place well after that ruling:

 

McGee’s trial occurred 22 months after our opinion in Cunningham. The prosecutor should have known that he was eliciting inadmissible testimony. The judge should have known it too, yet did nothing. And defense counsel likewise must have understood that the testimony was out of bounds—yet he did not object. It is unlikely that counsel was asleep; the hearsay rule is second nature to any trial lawyer. Perhaps he viewed the prosecutor’s misstep as a godsend.

 

Judge Easterbrook and his fellow panel members threatened disciplinary proceedings in the event of any repeat occurrences:

 

Although McGee is not entitled to a new trial, we are dismayed by the prosecutor’s conduct and disappointed by the district judge’s failure to intervene. The extensive hearsay did not slip in by accident, in the heat of the moment; the prosecutor must have carefully planned this line of testimony. The proper way to introduce jurors to forthcoming wiretap evidence ought to be featured in the United States Attorney’s Manual. The United States has not attempted to defend the propriety of the prosecutor’s tactics. Waiver and the plain-error doctrine may insulate judgments from reversal, but recurrence of an episode such as this may lead to the opening of a disciplinary proceeding for the lawyers involved.

 

In another portion of the opinion, the panel upheld and approved the trial court's use of mid-trial evidentiary summaries presented to the jurors by the prosecution and defense. Distinguishing the Second Circuit's rejection of such summaries in United States v. Yakobowicz, 427 F.3d 144 (2nd Cir. 2005), Judge Easterbrook noted that the summaries were: presented after a weekend break, one to each side, and non-argumentative in nature. Hat tip to Mark Stuaan for bringing this opinion to my attention.

 

(slw)