On three separate occasions first in his introductory remarks to the jury, next in his final instructions, and finally in response to a jury note during deliberations the trial judge instructed the jurors in conformity with Criminal Jury Instructions for the District of Columbia, No. 4.43 (3d ed. 1978). He told them that the government must prove beyond a reasonable doubt (in addition to the other elements of the offense) that "the defendant acted maliciously, that is, with intent to injure or destroy the property, for a
bad or evil purpose, and not merely negligently an accidentally. "An act is done maliciously where it is done on purpose, without adequate provocation, justification or excuse, and has as its foreseeable consequence damage to or destruction of the property. Malice may he inferred from intentional wrongdoing, accompanied by a bad or evil purpose. It is not necessary that the defendant have intended any actual harm which you may find to have resulted from the act[s] with which he is charged; it is only necessary that you find he acted with a consciously disregard of a known and substantial risk of harm which the law intended to prevent.
(Emphasis added). The italicized language, reasonably construed,focuses an the defendant's subjective state of mind --he must consciously disregard the risk --and not on that of a hypothetical reasonable person.
After both parties had rested, and prior to closing argument, the judge met outside the presence of the jury with counsel to preview his instructions. There was also some discussion of what would be permitted in closing argument.  There was no mention, however, of the question whether the government would be allowed to argue a "reasonable person" standard or that Thomas' subjective expectations were irrelevant. As a consequence, when the prosecutor made the arguments to the jury
[9 The prosecutor attempted unsuccessfully to persuade the judge not to permit the defense attorney to argue for a defense of provocation based on alleged unlawful conduct by law enforcement officials directed against Thomas.]
which triggered this appeal, she had neither sought nor secured the court's permission to do so. 
Much of the prosecutor's closing argument was entirely appropriate. She told the jury that the issue in the case was whether Thomas had acted with malice, and that the court would instruct the jurors in detail on that issue after counsel had completed their arguments. She explained correctly that "what is important is that [Thomas] acted with willful and deliberate disregard for a known risk and that the damage to the property was reasonably foreseeable."
She also argued that
"What is relevant is that if something is set on fire that is right next to something else, it is, indeed, foreseeable that that something else is going to he touched and damaged by the flames. It cannot be denied. "[Defense counsel said to you that Mr. Thomas is an intelligent man. You saw that on
[10 As the court stated in United States v. Sawyer, 143 U.S. App. D.C. 297, 299 n.ll, 443 F.2d 712. 714]
[11 (1971): Before stating a legal principle, counsel should be sure that it will in fact be included in the charge. If there is any question about the accuracy or relevance of counsel's proposed statement of law, he should seek a ruling on the point before going forward with the argument."
The prosecutor was on notice that this rule was in effect in Judge Green's court. During the defense attorney's opening statement the prosecutor objected on the ground that counsel was discussing proposed evidence that would be inadmissible. In sustaining the objection, the judge Ruled that defense counsel had "run afoul of the fact that we have not yet had an opportunity to make a ruling on it"]
the stand. And for him to suggest that that [damage] was not foreseeable does not comport at all with what we've seen here. An intelligent person knows that that conduct would result in damage under the circumstances.
All of the above was, in our view, entirely legitimate.
Towards the end of her argument, however, the prosecutor crossed the line from the permissible-reasonable foreseeability of harm is evidence of malice -- to the proscribed--malice is determined by what a reasonable person should have anticipated. Her contention to this effect prompted a defense objection, with respect to which the judge deferred ruling:
"[The prosecutor]: We use a reasonable man standard, a reasonable person standard, when we look at what is reasonably foreseeable....
"We know that he deliberately set that structure on fire. He did it ta prove a point. The question then becomes whether or not by that act, the damage to the column was reasonably foreseeable. The government submits that in using a reasonable person standard that the only conclusion that one can reach based on the evidence is that it was, indeed, reasonably foreseeable that Mr. Thomas--
"[Defense counsel]: Your Honor, there is no where in the instruction where reasonably foreseeable is the concept--
"The Court: [Defense counsel, save your comments until the end of the closing argument."
After thanking the court, the prosecutor ventured into an even more dangerous area.
Mr. Thomas said to you that he was surprised that the flames reached the level that they reached. He was surprised that the column was damaged. That is not at all important or relevant to the issue of malice.(Emphasis added.)
Shortly thereafter, the prosecutor completed her argument, counsel for Thomas renewed his objection, and the following colloquy ensued:
[Defense counsel]: There is absolutely no language in the instruction about "reasonable." [The prosecutor] is throwing that in there and telling the court what the law is
The Court: True, there isn't.
[Defense counsel]: I would ask the Court to strike it.
The Court: I will.
[The prosecutor]: [T]he case law in the case, we're talking about reasonable foreseeability. That's not a misstatement of what the term means. I think if the Court, as the Court has done, reads the cases, we're talking about reasonable foreseeability.
"The Court: You're not talking about reasonably [foreseen] in this circumstance here. Really what I would like to do is, I will instruct the jury right not, of course, the attorney's statements of the law are not evidence and they really should be paying attention to the instructions I gave them as to what the law is. Mr. [Defense counsel], that's what I'm going to do."
US APP 84-1728 Intro