Clowning around in Georgia

Why is it always Georgia? The latest, via Volokh, from the Georgia Peach State:

The record in this case establishes that the prosecutor, in the final moments of her concluding argument on behalf of the State, “clicked” her fingers at  which signal one of the deputies in the courtroom turned out the lights and an associate prosecutor “popped out a cake out of a grocery bag” complete with eight candles, which were then lit with a lighter brought into the courtroom; the prosecutor and her associate then proceeded to sing to “dear Josef,”  i.e., the deceased victim, the celebratory words to “Happy Birthday.”

This was during the closing arguments of a murder trial, where a couple were charged with the death of their son Josef. The defense lawyer, apparently one of the “top 5 defense attorneys in Georgia” didn’t object. Sorry, Manny “Top 5 defense attorney in Georgia” Arora, but you’re an idiot. How any defense attorney worth the paper his degree was printed on could restrain himself from jumping up from his seat, and protesting the blatant appeal to jurors’ sympathies is beyond me. But maybe I don’t think this way:

Arora testified at the motion for new trial hearing that he made a strategic decision not to object to the “Happy Birthday” song during closing argument.  Specifically, Arora thought that the “Happy Brithday” song was so “preposterous,” “absurd,” and “over the top” that “it would turn the jurors off,” and that he should not call any more attention to it by objecting to it.

“Strategic decision” is the language that full-of-themselves lawyers hide behind when they realize that they’ve – to put it simply – royally screwed up, but don’t want to take the hit to their reputation. It’s also the language that courts use to coddle these lawyers. Anyone who’s ever honestly practiced criminal law and who puts the client’s interests before their own will see this for what it is: bullshit. But then again, I guess one doesn’t get invited to be “a legal analyst for Atlanta’s ESPN radio affiliate 680 The Fan and regional television show Sports Nite” and “a frequent guest on CNN, Fox News, ESPN” and be “quoted as a legal expert in the New York Times and USA Today” by admitting that they screwed the pooch while defending the liberty and freedom of two individuals. If you were a real lawyer, Manny “Top 5″ Arora, you’d admit your mistake and not hide behind a legal fiction.

What’s more disturbing is that the court approval of this argument is undermined by the instructions given to the jury by the trial court:

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:

8 thoughts on “Clowning around in Georgia

  1. AnonymousAbolitionist

    I was actually going to try to save some of your angrier commenters some time here, and write the comment they would write. Then I realized that this case is actually too absurd for me to even come up with a sarcastic defense of the prosecutor’s conduct, the conduct of anyone else involved (except whatever soon-to-be-ousted-by-election member of the GA Supreme Court dissented), or the story generally. This is despicable.

    Reply
  2. Zachary North

    Good lord. Okay, a couple of things:

    I only vaguely recognize Mr. Arora’s name. Granted, I work on the south side of town and this was in Cobb county, which is north of town, but still. I think his office may be across the street from my dentist.

    The presiding judge was the Hon. James Bodiford, and the Cobb DA’s website lists two ADAs assigned to his court: Tom Woodward and Lynne Voelker. I’m having trouble finding out if either was actually the prosecutor on this case.

    It’s also interesting to note the the Cobb DAs office posted a listing for two open ADA positions on wednesday, two days after the opinion was published.

    Reply
    1. Gideon Post author

      I thought you’d enjoy the GA story. The opinion does say “she” in reference to the prosecutor. Now, whether this is just a common pronoun or a specific reference to the gender of this particular prosecutor, I don’t know.

      And yeah, this is terrible.

      Reply
  3. spo

    The judge, sua sponte, should put a stop to such nonsense. It’s not even close. A courtroom ain’t a circus.

    And if your case is that strong, prosecutor, why do you put that nonsense on. I am reminded of the Darly Routier evidence—the silly string at her kids’ gravesite. Yeah, creepy as hell, but there’s no real logical leap from what she did to “she’s guilty” (hence, no logical relevance). I think Routier is guilty as sin, but you have to wonder what prosecutors think of their cases if they resort to BS like that.

    Reply
  4. Pingback: Annals of prosecutorial stunts

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