Can the City be held responsible for the failure by a district attorney to avoid improprieties in summation?

The State's Summation. I agree with the majority opinion that (contrary to the district court's ruling) the City can be held responsible for the failure by a district attorney to train staff to avoid improprieties in summation. However, since discovery was stayed as to the existence and sufficiency of the City's training, the only question now is whether the improper summation resulted in "substantial prejudice." United States v. Certified Envtl. Servs., Inc., 753 F.3d 72, 95 (2d Cir. 2014). That turns on: (i) the severity of the misconduct; (ii) the value of any curative instruction; and (iii) the weight of the evidence. Id. I will take them one by one.

(i) Bellamy identifies remarks that are, as the majority opinion recognizes, troubling. Op. at 76263. But (ii) as the majority opinion observes, "Bellamy's defense counsel did not object to them nor subsequently seek a curative instruction." Op. at 764. Nor did Bellamy raise this summation misconduct on direct appeal or as part of his habeas corpus petition. It is therefore implausible that the absence of a curative instruction was consequential. Op. at 76465; see United States v. Melendez, 57 F.3d 238, 242 (2d Cir. 1995). So the majority opinion concludes, and I agree, that the "the determinative factor" is the weight of the evidence. Op. at 76465.

(iii) Bellamy undertakes "a heavy burden" of establishing misconduct "so severe and significant as to result in the denial" of due process. United States v. Locascio, 6 F.3d 924, 945 (2d Cir. 1993). "[W]here the jury's verdict finds substantial support in the evidence, counsel's improper statements will frequently be de minimis in the context of the entire trial." Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124 (2d Cir. 2005).