United States v. Henry Clay West

MEREDITH, District Judge,

dissenting:

I disagree with Judge Fletcher’s characterization of the statement made by counsel for defendant in her closing argument regarding the testimony of the Assistant United States Attorney. That statement did impugn the credibility of the Government’s witness, albeit indirectly, and invited the prosecutor’s remarks concerning the veracity of that witness.

Even if the prosecutor’s remarks were improper, they nevertheless do not mandate reversal. The Constitution guarantees a fair trial, not a perfect one. To the extent that error is present, it is ordinarily incumbent upon the aggrieved party to make a timely objection. As Judge Wright notes, however, counsel for defendant in this case sat silently through the prosecutor’s rebuttal summation, permitted the judge to instruct the jury, and said nothing as the jury retired. Defendant’s counsel objected to the prosecutor’s statements only after the case had been submitted to the jury, at which time there was little, if anything, the trial court could do to remove the taint. Under these circumstances, I believe that we are compelled to hold that any error was waived. I would therefore affirm defendant’s conviction.