making impropriety cool since 1974

It’s prosecutorial misconduct week here at “a public defender” and I’ve finally come across a decision that invokes no other reaction than the aforementioned Fonzie “ayyy!”. In fact, it’s how I imagine the three judges who signed on to the opinion reacting when faced with all the instances of egregious misconduct and yet rendering a decision that – yet again – condoned and sanctioned the behavior.

This time, in State v. Albino, the Appellate Court cannot but agree that the numerous instances of unacceptable behavior, that they gingerly call “improper”, crossed the bounds of acceptable lawyering, yet somehow they find a way to affirm, because the defendant was convicted of murder, after all and he was really, really guilty.

Here’s but a sampling of the key misconduct. From referring to the decedent as a victim and the crime as murder:

The defendant first contends that the prosecutor acted improperly when he ‘‘repeatedly commented on the guilt of [the] defendant and attempted to influence the jury by his persistent use of the terms ‘victim,’ ‘murder,’ and ‘murder weapon’ throughout the trial …’’ The defendant contends that the prosecutor referred to Rivera as the ‘‘victim’’ thirty-one times, referred to his death as ‘‘murder’’ five times, and referred to the firearm as the ‘‘murder weapon’’ eight times during closing argument. He directs us to similar occurrences during the prosecutor’s questioning of trial witnesses where he alleges that the prosecutor referred to Rivera as the ‘‘victim’’ twenty-seven times, referred to his death as ‘‘murder’’ twelve times, and referred to the firearm as the ‘‘murder weapon’’ six times. We agree that in a case such as this, where the defendant has asserted a self-defense claim, it is improper for the prosecutor repeatedly to use the words victim, murder and murder weapon throughout the trial.

To arguing that in order to believe the defendant, the jury would have to find all the witnesses were lying:

The defendant next contends that the prosecutor violated State v. Singh, supra, 259 Conn. 693, when he argued that in order to acquit the defendant, the jury would have to find that every other witness ‘‘was wrong.’’ He argues that there is ‘‘no distinction between a prosecutor using the word ‘wrong’ or ‘mistaken’ instead of ‘lying’—all are equally improper.’’ The state argues that there is a distinction when such words are used during closing argument. We agree with the defendant.

To improper attempts to bolster the credibility of witnesses:

First, the defendant claims that the prosecutor improperly asked several of the state’s witnesses on direct examination and on redirect examination if they were telling the truth or if they were prepared to tell the truth. This, he argues, was an attempt by the prose-cutor to bolster or rehabilitate the credibility of these witnesses before the witnesses were impeached. The state argues that each of the witnesses had testified that they had pending criminal cases and that they did not want to testify in the present case. The questions posed relating to their truthfulness, it argues, merely were attempts to confirm that despite their reluctance to testify, they still were prepared to tell the truth. We conclude that the questions posed on direct examination were improper attempts at bolstering the witnesses.

and finally to finding that these instances were “central to the critical issues of the case”:

We next consider the fourth Williams factor, the centrality of the improprieties to the critical issues in the case. See id. The defendant argues that ‘‘the prosecutor attempted to obtain a conviction by having the jury consider not the evidence and the charge, but instead, by persistently characterizing [the] defendant’s actions as murder and Rivera as a victim, by bringing in sympathy for Rivera and [by] inflaming the jurors’ passions, by repeatedly emphasizing that his witnesses were credible, by denigrating defense counsel and by arguing that every single witness was lying if [the] defendant was innocent.’’ The state concedes that ‘‘the alleged improprieties affected the central issue in this case, which was whether the defendant murdered the victim or acted in self-defense, but not significantly so.’’ We conclude that the improprieties were central to the critical issues of the case.

And yet, these improprieties didn’t deprive the defendant of his right to a fair trial bec-ayyy! Of course, the Court doesn’t bother to name the offending prosecutor, nor does the Court either impose sanctions or refer the matter to the Grievance Committee for sanctions for this conduct it finds to be improper. The lesson here? Go ahead and do all this stuff we said was improper, because in the end, criminals are criminals and we aren’t going to do anything other than mildly chastise you in a way that will preclude anyone from ever connecting you to this behavior and really, you put a really bad guy away, so we should be giving you a damn award.



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