Although it was improper for the prosecutor to falsely say a government witness confessed to fulfill a promise to his dying mother, a new trial is not required.
“While it is a close case, we find that these factors weigh against a finding of prejudice. It is true that the remarks were neither invited by the defense nor rebuttable. But we do not believe that the prosecutor’s remark was so seriously improper as to cause Lathrop prejudice, as Maki’s testimony made clear to the jury that his mother had died before he confessed to police. Moreover, the prosecutor backpedaled from his statement regarding the timing of Maki’s confession after defense counsel objected. He advised the jury that, if it remembered Maki’s testimony differently, its recollection controlled. In addition, the district court, while not striking the prosecutor’s statements, did provide a cautionary instruction to the jury that the prosecutor’s remarks were not evidence and that if the jury’s recollection of Maki’s testimony was contrary to the prosecutor’s statement, its recollection won out. Finally, we note that there was overwhelming evidence of Lathrop’s guilt: Maki implicated Lathrop, Maki’s testimony was corroborated by other witnesses, and multiple witnesses testified that Lathrop discussed his role in the arson and went so far as to ask for their help in implicating another party as the arsonist. See United States v. Alviar, 573 F.3d 526, 543 (7th Cir. 2009) (noting that overwhelming evidence can eliminate ‘any lingering doubt that the prosecutor’s remarks unfairly prejudiced the jury’s deliberations’). Accordingly, we conclude that the government’s remark did not render the trial unfair.”
10-1099 U.S. v. Lathrop
Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Kanne, J.