Archive for November, 2010

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Nor was counsel’s concern legally sustainable here where the trial court in its opening charge expressly instructed the jurors that “you should not be  prejudice[d] in any way against a lawyer who makes objections for the party he or she represents.”

But let’s put the defense lawyer aside for a moment. Shouldn’t the prosecutor’s outrageous behavior by itself be deemed a violation of Due Process, requiring a reversal? The dissent sure seems to think so:

There was no legitimate reason for what the prosecutor did. It was neither argument nor rebuttal, because there is nothing at all in the record about birthdays and birthday cakes to raise even the slightest possibility that the prosecutor was drawing a reasonable inference from the evidence presented  or the arguments made by defense counsel. To the contrary, the evidence established that the victim’s family followed an austere lifestyle, including dietary restrictions, that eliminated the possibility of the victim experiencing the type of birthday event dramatized by the prosecutor.3

The prosecutor’s  birthday production was not meant to be argument or rebuttal: it was a theatrical stunt spun out of pure fantasy. Its sole purpose was to prejudice the  rights of appellants before the jury in an impermissible attempt to invoke the jury’s passions and divert the jury from the evidence.4

And footnote 4 gives us a little more insight:

4I am giving the prosecutor the benefit of the doubt by concluding that her motive for pulling this stunt was simply to evoke sympathy for the victim in an unprofessional attempt to obtain guilty verdicts at any cost, as this motive is less offensive than the other possible motive raised by this case, i.e., that she  was deliberately pandering to the television audience observing the proceedings on Court TV. See defense counsel’s testimony at the hearing on  appellants’ motion for new trial (“I understand the cameras were rolling and everybody wants to be Nancy Grace’s friend”).

Oh. There were TV cameras rolling and people were watching live. And what of the trial court’s duty to maintain decorum in the Court and ensure an orderly application of the rules?

It offended the dignity and decorum of the court and violated every precept of professionalism and fair play. Yet the trial court did absolutely nothing. The event played  itself out without the trial judge performing his duty to maintain decorum in the courtroom. Moreover, after observing this “‘preposterous’” performance, the trial court took no steps of any kind to minimize the prejudice. There was no rebuke to counsel; there was no direction to the jury to ignore the  spectacle they had just witnessed; there was no charge to the jury that sympathy for the victim was to play no role in their verdict. See Div. 1 (C), infra.

The record is clear that the trial judge violated his duty to maintain order and decorum in his courtroom. Although he told the jurors in his pre-trial instructions that he was “going to make sure that the decorum of the court — that the decorum of the courtroom stays intact,” he took no action to stop  an out-of-control prosecutor from turning his courtroom into a theater stage for her unprofessional behavior, which could only have left the jury with the impression that  what she did was perfectly acceptable.

It is beyond question in this exceptional circumstance that the trial judge’s failure to maintain the decorum of his  courtroom was an error that seriously affected the fairness, integrity and public reputation of these criminal proceedings, such that “the plain error rule should be applied” to this case, Paul v. State, supra, 272 Ga. at 848 (3), and these convictions reversed.

So, just to be clear: the prosecutor performed this outrageous stunt, defense counsel sat silent because of some made-up reason and the trial court didn’t as much cough uncomfortably. The defendants were found guilty and now the Georgia Supreme Court has affirmed, despite the recognition that the behavior was outrageous. The majority’s reasoning simply was that the lawyer didn’t object, so the issue wasn’t properly preserved for appeal and “plain error” doesn’t apply because this isn’t a death penalty case (which the dissent points out is an incorrect interpretation of prior decisions).

Folks, the lesson here is that if ever a prosecutor unveils a cake during closing argument and starts singing happy birthday to the decedent, jury be damned, you object. Because if you don’t, it’s going to be your fault that your client was convicted in violation of the Constitution. And isn’t that why you’re doing the job in the first place? To protect Constitutional rights?*

Apropos of the discussion of prosecutors and their ethics the last few days, it is indeed notable that the decision – neither the majority nor the dissent – does not bother to name the offending prosecutor.

*Luckily, even in CT, defense counsel need not object in order to preserve the issue of prosecutorial misconduct impropriety for appeal:

“Or to put it another way `while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.’ Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). `A prosecutor must draw a careful line. On the one hand, he should be fair; he should not seek to arouse passion or engender prejudice. On the other hand, earnestness or even a stirring eloquence cannot convict him of hitting foul blows.’ Viereck v. United States, 318 U.S. 236, 253, 63 S. Ct. 561, 87 L. Ed. 734 (1942) (Black, J., dissenting).

In this connection, we recognize that primarily it is the responsibility of the defense counsel to protect the rights of his client by taking appropriate action to alert the trial court to claims that those rights are being jeopardized. In this case, the defense counsel’s sporadic objections to the improper cross-examinations and his lack of objection to the impermissible closing argument fell short of that responsibility. Nonetheless, in a case of serious and repeated prosecutorial misconduct such as this, the trial court has an independent responsibility to intervene, even in the absence of an objection or motion by defense counsel. See Harris v. United States, supra, 657. Although the timing and degree of that intervention will depend upon the facts of each case; id., 657 n.1; the court’s reaction should be proportionate to the seriousness of the misconduct. Berger v. United States, supra, 85; Harris v. United States, supra. 550*550 We cannot say that the court’s cautions to the jury in this case adequately dealt with the severity of the prosecutorial misconduct.

State v. Williams. And:

Due to continued confusion, we also take this opportunity to clarify our due process analysis in cases involving incidents of prosecutorial misconduct that were not objected to at trial. In doing so, we conclude that, in cases like the present one, it is unnecessary for the defendant to seek to prevail under the specific requirements of [preservation of issues for appeal] State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),[10] and, similarly, it is unnecessary for a reviewing court to apply the four-prong Golding test.

State v. Stevenson.

And as if that wasn’t enough craziness for one day, watch this:

« Hide It