The long lament has been the unaccountability of prosecutors in the criminal justice system: they are given broad powers and responsibilities and then shielded at every turn from being held accountable for the myriad, tiny abuses that are committed on a fairly regular basis. Just last week we were all mourning the ineffectual Brady v. Maryland. We all screamed when Connick was announced, holding that prosecutors weren’t financially liable for misconduct impropriety. We all rolled our eyes when they changed misconduct to impropriety. We all roll our eyes when courts point out impropriety but refuse to name the prosecutors who committed that misconduct. But what isn’t at dispute is that prosecutors have a special role to play in the criminal justice system; their responsibilities are elevated and the standards they should be held to are higher.
A great deal is at stake in a criminal trial. The interests involved go beyond the private interests at stake in the ordinary civil case.They involve significant public interests. . . . [T]he criminal jury trial has a role in protecting not only the liberty of the accused, but also the entire citizenry from overzealous or overreaching state authority.
Duncan v. Louisiana, 391 U.S. 145.
When presenting closing arguments, as in all facets of a criminal trial, the prosecutor, as a representative of the state, has a duty of fairness that exceeds that of other advocates. [A] prosecutor is not an ordinary advocate. His [or her] duty is to see that justice is done and to refrain from improper methods calculated to produce prejudice and wrongful decisions by the jury.
State v.Moore, 69 Conn. App. 117, 130.
So believe me when I say that what the Connecticut Appellate Court did yesterday was truly extraordinary. It has happened maybe once or twice in the last decade or perhaps even two.
The opinion in State v. Santiago [PDF] starts thusly:
The defendant, Victor Santiago,appeals from his conviction of felony murder in violation of General Statutes § 53a-54c and murder in violation of General Statutes § 53a-54a, claiming that he was deprived of his due process right to a fair trial due to improper comments made by the prosecutor, Terence D. Mariani, Jr., during his closing and rebuttal arguments to the jury.
He also asks this court to invoke its inherent supervisory authority over the administration of justice to reverse his conviction in light of Mariani’s improper comments made during his closing argument to the jury and his deliberate pattern of making such comments in numerous other cases.
Because we conclude that Mariani has engaged in a deliberate pattern of improper conduct in this case and others, and he remains undeterred by pronouncements by this court and our Supreme Court that his conduct was improper, we believe that nothing short of reversal will have the effect of deterring him.
We thus reverse the defendant’s judgment of conviction and remand the case for a new trial.
Unheard of. Just simply unheard of. Not only does the opinion name the prosecutor, but also calls his conduct a “deliberate pattern”.
Judge Sheldon, who wrote the opinion, is absolutely correct: the only just penalty for repeated Constitutional violations and wanton disregard for trial and appellate court orders and cautions and reprimands is to reverse the conviction. What else can be done to drive home the message that prosecutors are not free to abuse the law and that the rules apply to them, too. If they are to be given a license to disregard Due Process with ease, then how can one with a straight face then hold defendants and defense attorneys to much higher standards?
Mariani did everything in this case he isn’t supposed to: he played on the jurors’ sympathies for the victim and witness, he demonized the defendant and his family and equated the prosecutor’s job with that of the jury’s. Each by itself would be a reversible Due Process violation. The court then lists 8 other cases in which Mariani’s conduct was censured by the Appellate or Supreme Court and he was admonished not to do so again. And yet he persisted.
It’s not that he’s not smart or that he doesn’t understand it: the only explanation can be that he just doesn’t care. To repeatedly, continually disregard instructions from judges and appellate courts about the impropriety of one’s actions can only signal that the subject thinks himself or herself to be above the law. This clearly got to the Court, which reasoned:
Mariani made several improper comments in this case, a felony murder case, and, in so doing, jeopardized the constitutionality of the trial proceedings. More troublesome, however, is his repeated and deliberate use of improper argument throughout other cases. Despite the fact that this court and our Supreme Court have repeatedly determined that Mariani has exceeded the bounds of proper conduct, he continues to do so. We thus conclude, as our Supreme Court did in Payne, that “nothing short of reversal will deter similar misconduct in the future.” Id., 466.
Stunning, unprecedented and well deserved. The only question remains is whether the Supreme Court will reverse, because you know, criminals.
