The Connecticut Law Tribune has published this very important and necessary editorial, criticizing all the arms of the criminal justice system for their complicity in repeated instances of prosecutorial misconduct during closing arguments by Connecticut prosecutors.
Written in the wake of the extraordinary opinion in State v. Santiago last month, the editorial rightly questions whether prosecutors in the State are paying any attention at all to the steady stream of opinions coming from our appellate courts that deem their comments improper. The editorial also rightly questions the efficacy of such chastisement when our appellate courts also routinely renders these improprieties harmless: a sort of get out of jail free card. A wink and a nod, as the editorial calls it.
What’s to prevent a prosecutor from taking a calculated risk in crossing the line of acceptable conduct when our appellate courts on a regular basis give a wink and a nod to this kind of improper behavior? Maybe it’s time for grievances to be filed where certain kinds of misconduct, like that detailed in the Santiago case is documented.
With appellate courts reluctant to even name prosecutors, let alone find that their misconduct impacted the outcome of the case 1, with still no referrals to the grievance committee and with no financial incentive to “behave”, as it were, there really is no effective way to enforce Constitutional limits on prosecutors’ conduct and arguments.
But the editorial also rightly points the finger at the defense bar: we are just as complicit in numbing everyone to the real extent of the impropriety in these cases. While it is true that lack of an objection by defense counsel to improper argument is but one factor 2 to be considered, it is fast becoming the predominant factor.
This highlights another massive problem with the fair administration of justice that has fundamentally altered the way due process is dispensed in Connecticut that has been left untouched by this – or any other – editorial as far as I know. I’ve written about it here, though.
Our court has become extremely outcome oriented and that outcome is predominantly this: sustaining convictions obtained by trial courts and juries. In order to achieve that outcome, the Court has – with the Prosecution’s urging and prodding – made it optional and less desirable for trial judges to be the arbiters of the law and of what is admissible and what is not. It has blazed a path that absolves trial judges of any responsibility for gaps in knowledge of the procedure to govern the orderly administration of justice.
It has taken this awesome responsibility and placed it squarely on the shoulders of defense attorneys. We are the lighthouses by which the appellate courts will guide the ships to safe port. There used to be a time where trial lawyers could afford to sit back in their chairs, roll up their sleeves and “try cases from the file”, making statements that border on ineffective assistance of counsel like “I try to win at trial, not on appeal”.
Well you better win at trial now, because given the way the majority of the defense bar practices, no one is winning on appeal. Defense attorneys are complicit in not preserving objections, not objecting properly, not filing motions in limine, not filing requests to charge: in other words, every single thing that is necessary to properly preserve Constitutional and evidentiary claims of error for appellate review.
Appellate review isn’t the wide open football field that it used to be – or even should be. Rather, our appellate courts have reduced securing appellate review to jumping through flaming hoops that move unpredictably and narrow impossibly to the head of a pin.
Appellate courts repeat incessantly – in some areas of the law – that “talismanic incantations” aren’t required to invoke the protection of rights, or that to be valid, a plea canvass need not have specific utterances, but rather simply the gist of the matter.
Not so if you want to vindicate your Constitutional rights. A most specific and almost entirely accurate objection must be noted and repeated several times.
Appellate review has turned into a game of hide the ball and you’re it.
If we are to vindicate all the Constitutional rights that every citizen of this country is entitled to, then we have to start getting better at our jobs. We need to understand the game the court is playing and we need to play that game. We have to think of the long game: trial, appeal, habeas, federal habeas.
Because, for our clients, this is their life, not a game.