ADA Guy's Summation

Bellamy contends that ADA Guy made numerous improper remarks during his summation sufficient to render Bellamy's subsequent conviction a denial of due process. The district court disagreed, largely on its conclusion that ADA Guy's "comments were garden variety summation comments." We disagree and conclude that the impact of the summation on the trial presents a jury question.

In United States v. Certified Environmental Services, Inc., 753 F.3d 72 (2d Cir. 2014), we discussed the relevant standard:

"When reviewing claims of prosecutorial misconduct based on inappropriate remarks in the Government's . . . summation, we will reverse if the misconduct caused substantial prejudice by so infecting the trial with unfairness as to make the resulting conviction a denial of due process. In assessing whether prosecutorial misconduct caused 'substantial prejudice,' this Court has adopted a three-part test, which considers the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the misconduct."

Bellamy contended at summary judgment that ADA Guy made fourteen improper summation remarks. Bellamy contends these remarks were sufficiently improper to entitle him to relief under § 1983, even though his counsel did not object to them during trial (or afterwards). While we are not persuaded that the majority of the remarks identified by Bellamy were either improper or could have affected the trial, we believe that certain remarks were sufficiently problematic to require that they be assessed by a jury (despite the absence of a contemporaneous objection by trial counsel).

The most problematic is Bellamy's contention that ADA Guy told the jury near the end of his summation: "I know who committed the murder." This statement was clearly improper and severely prejudicial if it was made. "It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the . . . evidence or guilt of the defendant." We have concluded that the "policies underlying this proscription go to the heart of a fair trial." In short, it is the height of summation misconduct for a prosecutor to argue to the jury his personal opinion as to a defendant's guilt. 

Defendants do not dispute that had the statement been made it would have been serious misconduct; rather, they point to ADA Guy's deposition testimony denying that he made the remark and contending that there was simply a transcription error in the trial record. Guy Dep. Tr. 154-55, 232 (stating that he said "[you] know who committed the murder"). But, on a motion for summary judgment, we must draw all inferences in favor of the non-movant, which requires us to accept the inference that the trial transcript accurately depicts what occurred at trial.

Regardless, that remark, if it occurred, does not stand alone. Also improper was ADA Guy's comment, again made near the end of his summation, that "you [Bellamy] are not going to get away with it, not this time." Viewed in Bellamy's favor, this statement permitted the inference that Bellamy had committed other uncharged crimes at other times (murder, no less, the crime for which Bellamy was on trial) and that the government had evidence of those crimes to which the jury was not privy.

ADA Guy's summation contained other improper remarks. In arguing to the jury that the evidence showed that Carter identified Bellamy at the lineup, ADA Guy told the jury that they "don't have to take my word" on the subject, but, as discussed, a prosecutor may not inform the jury either way what his "word" is. Also crossing the line was ADA Guy's rhetorical question to the jury, in a case where the government put in no evidence of motive: "Where is there proof defendant had no motive to kill somebody?" Of course, Bellamy was under no obligation to prove the absence of a motive and it is difficult to see how a defendant could possibly do so.  At another point, ADA Guy remarked that Bellamy "is a liar," a comment we have found deserving of admonishment, especially where, as here, "such characterization is applied to a [criminal] defendant . . . [where] the risk of prejudice is greater."

The trial court took no "curative measures" to obviate the harms from these improper comments, but the reason for that is clear: Bellamy's defense counsel did not object to them nor subsequently seek a curative instruction. A defense counsel's failure to object to an improper summation remark undercuts the probative value of the subsequent lack of a curative measure. 

But, "[c]urative measures constitute only one part of the analysis." As identified above, the third component of our due process test requires, notwithstanding the lack of an objection from defense counsel, that we still ask how confident we are that the criminal defendant would have been convicted absent the summation misconduct. We must as a consequence take stock of the realities of the trial in which the summation misconduct due process violations are said to occur. For example, in Farmer, we found that the prosecutor's "flagrant abuse" through his summation remarks, not objected to by defense counsel, was insufficient to warrant reversal of one of the defendant's convictions  because the defendant's guilt on that charge "was supported by such overwhelming evidence that conviction was a certainty," but the improper summation remarks did warrant reversal of defendant's conviction on a different charge for which the evidence "was far less conclusive." As we concluded, "the determinative factor [was] the weight of the evidence."

If the trial evidence here had clearly pointed to Bellamy's guilt, we would have no hesitation in rejecting his improper summation claim on this record. The bar for concluding that unobjected to summation remarks amount to a due process violation is appropriately high. And we also acknowledge that as an appellate court we should be wary of "cherry-picking" improper yet isolated remarks from a cold record made during a lengthy summation, especially where defense counsel, who witnessed the statements live in court, offered no contemporaneous objection. But here, it is difficult to conclude other than that Bellamy's criminal trial existed at the cusp of reasonable doubt. Thus we conclude that a civil jury evaluating Bellamy's due process claim could reasonably find that ADA Guy's improper remarks pushed this case over the line.

Heading into summations, the QCDA's office had major misgivings about the quality of its case. See generally People v. Bellamy, 84 A.D.3d 1260, 1262, 923 N.Y.S.2d 681 (2d Dep't 2011) (stating that there was "less than overwhelming evidence against [Bellamy]"); see also App'x 2088 (documenting the jury's prolonged and difficult deliberations). Discovery revealed that ADA Guy himself, after the close of evidence, thought the case had "sort of crumbled in [his] hand," and that he "needed something else." ADA Guy met with other prosecutors, including his bureau chief, prior to giving his summation because they all "sensed there was a problem going on." And ADA Guy admitted during his deposition that although earlier he thought he had a strong case against Bellamy, by the time the evidence had closed "it was closer to being a weak case for the prosecution." In his deposition, ADA Guy acknowledged that "[t]here was also enough weakness that a jury could've said, no, we have a reasonable doubt." Indeed, "[t]he general consensus," ADA Guy acknowledged, "was that [he] needed a very strong summation in order to sort of salvage this case. . . . I thought I was in trouble."

ADA Guy then delivered his "very strong summation," but one that was supported by what our cases have consistently described as improper remarks that tend to sway the jury in constitutionally impermissible ways. The principal statements with which we take issue were given at the very end of ADA Guy's summation, which, in New York, follows the defense summation and is not subject to rebuttal. Thus, if the transcript is to be believed, the nearly final words the jury heard before entering deliberations were ADA Guy's statement that he, as the prosecutor, knew that Bellamy killed Abbott and that Bellamy was not going to get away with it, "not this time." Viewed in this context, and considering the other inappropriate comments we have identified, we conclude that Bellamy has raised a triable issue of fact as to whether ADA Guy's summation "so infect[ed] [Bellamy's] trial with unfairness as to make [his] resulting conviction a denial of due process." 

CONCLUSION

For the foregoing reasons, we VACATE in part and AFFIRM in part the judgment of the district court and REMAND for further proceedings consistent with this opinion.