The opinion of the court was delivered by: DIAMOND
The respondent, Adam O. Renfroe, Jr., was lead counsel for one Curtis Strong who had been charged in this District in a fourteen-count indictment with distributing, and possessing with the intent to distribute, cocaine, in violation of 21 U.S.C. § 841(a)(1). Mr. Strong's trial commenced on September 3, 1985, and a guilty verdict was returned by the jury on September 20, 1985. Immediately following the verdict, the court held the respondent in contempt and sentenced him to thirty days imprisonment for arguments he had made in his summation which were in violation of specific rulings and orders made by the court the previous day and during respondent's summation.
Respondent's oral motion for reconsideration was denied by the court, but execution of the sentence of imprisonment was stayed and respondent was granted two weeks within which to engage counsel to file and brief appropriate motions to reconsider.
Subsequently, counsel entered an appearance for the respondent and filed petitions "for an arrest of judgment, for a new trial and for reconsideration", "to modify and reconsider sentence", and "to add an amendment to his petition for arrest of judgment, for a new trial and for reconsideration". Briefs were filed and oral argument held. At the conclusion of oral argument, the court indicated that it would deny the petitions, but that it would not enter a final order until it could file a written opinion.
The government's case against the defendant Curtis Strong consisted essentially of the testimony of a number of major league baseball players to whom Mr. Strong allegedly had sold cocaine. Each of these witnesses testified under a grant of immunity conferred by the court on applications filed by the government pursuant to 18 U.S.C.A. § 6001 et seq.
During his opening argument, at several side bar conferences, in statements to the news media, and throughout his cross-examination of these witnesses, the respondent Renfroe expressed criticism of the immunity policy of the government which he characterized variously as "scapegoating" the defendant Strong while permitting the witnesses to go unpunished; or as prosecuting the "little guy" while letting the "big guy" go; or as condoning the use of drugs by the immunized ballplayers. As a result, it became apparent to the court that in his summation to the jury the respondent would argue in effect that the jury should express its disapproval of the immunity policy of the government by acquitting the defendant Strong. It was equally apparent that counsel for the government would respond with an argument justifying the immunity grants and a call for endorsement of its policy. It was clear, therefore, that unless the court intervened, the jury's deliberations would be diverted from consideration of the issues properly before it to matters quite irrelevant, and that it would be invited to render a verdict on wholly inappropriate grounds.
Of course, it was the duty of the court to prevent this subversion of the judicial process. In United States v. Billy G. Young, 470 U.S. 1, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985), the Court addressed the question of how trial courts should deal with improper argument of defense counsel and the so-called "invited response" of counsel for the government. The Court stated at page 8:
It is clear that counsel on both sides of the table share a duty to confine arguments to the jury within proper bounds. Just as the conduct of prosecutors is circumscribed, "the interests of society in the preservation of courtroom control by the judges are no more to be frustrated through unchecked improprieties by defenders." Sacher v. United States, 343 U.S. 1, 8, 96 L. Ed. 717, 72 S. Ct. 451 (1952).
470 U.S. at 13, it continued:
Plainly, the better remedy in this case, at least with the accurate vision of hindsight, would have been for the District Judge to deal with the improper argument of the defense counsel promptly and thus blunt the need of the prosecutor to respond.
The Court cited with approval the ABA Standards for Criminal Justice 4-7.8 (2d.ed 1980), which provide, inter alia :
"(d) A lawyer should refrain from argument which would divert the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused under the controlling law or by ...