Legal Commentary

AUSA Rebuked by Name in 7th Cir. Reversal

By Jeralyn

The 7th Circuit Court of Appeals has reversed the conviction of a man convicted of violating food-labeling laws and wire fraud for allegedly relabeling bottles of salad dressing. (Opinion here (pdf)).

The appeals court found the evidence at trial insufficient but in addition, called out AUSA Juliet Sorensen by name for improper conduct during the trial.

It's not unusual for judges to be critical of prosecutorial tactics. But Posner's rebuke is drawing attention because he identified the prosecutor by name and called for sanctions.

"The government's appellate lawyer told us that the prosecutor's superior would give her a talking-to," Posner wrote in the opinion that was joined by two other judges on the 7th U.S. Circuit Court of Appeals. "We are not impressed by the suggestion."

Here are a couple of Ms. Sorensen's egregious statements to the jury. [More...]

Sorensen said, "Ladies and gentlemen, don't let the defendant and his high-paid lawyer buy his way out of this." After defense counsel objected, she added, "You have to earn justice. You can't buy it."

Posner wrote, "The prosecutor's second statement was worse than the first, because it could be understood as a warning that the defendant might try to obtain an acquittal by bribery."

The appellate division of the U.S. Attorneys' office didn't even try to defend Sorenson's statements in its brief, which, ironically, was signed by Sorensen:

The government later conceded in written arguments to the appellate court that the two statements "were improper, because they cast defendant's exercise of his constitutional right to counsel in a negative light." Sorensen signed the brief.

As to the relabeling claim, the Court noted:

At trial, Sorensen repeatedly characterized the "best-when-purchased date" as the date the dressing would expire, which Posner called "false and misleading."

"The term 'expiration date' … on a food product … has a generally understood meaning: It is the date after which you shouldn't eat the product," Posner said. "Salad dressing, however, or at least the type of salad dressing represented by Henri's, is what is called 'shelf stable'; it has no expiration date."

Full post as published by TalkLeft on March 17, 2009 (boomark / email).