In a case of real life not quite imitating art, a prosecutor who compared a defense attorney’s closing arguments to the Chewbacca Defense was able to win at trial. Although the prosecutor made an “improper remark” by invoking the defense from South Park, a federal appellate court ruled last week that he otherwise did not engage in prosecutorial misconduct. The case also appears to be the first time a federal court decision has alluded to the Chewbacca Defense.
Now synonymous with making absurd non sequiturs, the Chewbacca Defense dates back to the 1998 episode of South Park, “Chef Aid,” where a parody of legendary lawyer Johnnie Cochran defends his clients by talking about how Chewbacca, an 8-foot-tall Wookie, “lives on the planet Endor.” (Fact check: He does not.) Even though Cochran admits what he’s saying “does not make sense,” he’s still able to win over the jury (twice).
But outside of South Park, the defense is not quite as successful. Unlike Chewbacca, the case that led to last week’s ruling didn’t begin on the planet Kashyyyk but in Jacksonville, Florida. Paul Berkins Moise owned and operated a tax-preparer business and was indicted on federal tax fraud charges.
During closing arguments, Moise’s defense team brought up the fact that the IRS agents who investigated him were told to revise their initial calculations about Moise’s income and expenses. His attorneys then argued that because the IRS agents’s “work was so bad,” their testimony and their revised calculations couldn’t be trusted.
In his rebuttal, Assistant U.S. Attorney Arnold Corsmeier said the IRS agents’ initial calculations had “nothing to do with this case.” Instead, Corsmeier argued that the defense was throwing out a red herring reminiscent of the Chewbacca Defense from South Park:
“And I don’t want to seem flip, but some of you may have seen it. I think it’s a South Park episode. And there’s a character on there who is—plays kind of a shyster attorney. And there’s a scene where he’s giving his closing, and he puts up a picture of a Wookie from Star Wars. And he said: That’s a Wookie. What does that have to do with this case? Nothing. That doesn’t make any sense. This case doesn’t make any sense.”
Moise’s defense objected and claimed the prosecution was implying he was a “shyster lawyer.” In response, the district court told the jury to “disregard those last couple of statements about the South Park episode.”
With those statements disregarded, a jury found Moise guilty on 14 counts of filing false returns on behalf of unknowing clients and three counts of filing false returns on his own behalf. Moise was ultimately sentenced to 35 months in prison and ordered to pay the U.S. government more than $77,000 in restitution.
Moise appealed and accused the government of prosecutorial misconduct. He argued that the prosecutor’s “shyster” comment “deprived him of a fair trial,” alleging that it “poisoned the minds of the jury and likely confirmed for some of them their prejudices against defense attorneys.”
The Eleventh U.S. Circuit Court of Appeals unanimously disagreed. Although the court conceded that “the prosecutor made an improper remark,” the court saw “nothing in the record to suggest that Moise was prejudiced by the ‘shyster’ comment. It was a single, isolated remark in an eight-day trial, and we cannot say it permeated the entire trial.” Nor did the comment have “a prejudicial effect on Moise’s substantial rights.”
Attorneys for both sides declined to comment.
Hat tip to the Short Circuit newsletter from the Institute for Justice.