Saturday, May 17, 2008

"Lone Avenging Champion" Charged

An assistant state's attorney for Macon County Illinois has been charged with ethical violations based upon allegedly improper closing argument in a capital case. The convictions of two defendants were reversed based on a finding of misconduct by the prosecutor. The arguments are quoted at length in the charging document. Some highlights (or lowlights):

A murder case is an unusually difficult type of case for the prosecution to prove because the defendant has killed the main prosecution witness. The deceased never gets to testify. The deceased never gets to tell his side of the story.

        Then, who is left to take up his cause and try to speak for him? Often, it's a lone prosecutor, a stranger, who is left to champion the deceased. A solitary figure appears in Court bearing the burden of avenging another's death and presenting the truth to a jury and the Court. But, often time, justice only requires a solitary champion because truth and justice is not a load as heavy as it appears. The load has an unspeakable lightness."


As to the police witnesses:


I would suggest to you that you jurors lead sheltered lives. You stepped into a world, over a month ago, that to many of you never existed. You have no idea what kind of criminals and serious crime are lurking out there. There are dangerous people. There are mean streets. Not everyone lives in a peaceful neighborhood like you or has safe neighborhoods.

        The police are often referred to as ‘the thin blue line'. Well, what does that mean, ‘the thin blue line'? The police are there to protect you from the likes of Kenneth Lovelace, Gregory Williams, Andre Eubanks, Sean Marshall, Timothy Glass, Franklin Small. Who do citizens call—citizens of this County call when they need assistance? Who do citizens call when someone is breaking into their house or assaulting them? The police do not call Kenneth Lovelace, Gregory Williams, Andre Eubanks, etc.

        When you get up in the morning or your spouse gets up in the morning or a family member gets up in the morning and you go to work, are you risking your life to earn a paycheck? Are you putting your life on the line when you go to the office or your work? Yet, police-bashing seems to be a semi-popular sport until a citizen is in distress. Then, that same officer is expected to come to a citizen's salvation.

        Well, who do citizens want to serve and protect them in times of need? I would submit they want officers like Shane Brandel and Dan Street and Jason Derbort.

        Shane Brandel, you look at him, he looks like the boy who grew up next-door. The boy who grew up in the neighborhood who's finally an adult.

        Dan Street. Here's a man who served 4 years in the United States Marine Corps and then continued his service with the Decatur Police Department. A reserved, deliberate, low-key man.

        That's the advantage of a Jury Trial. You get to eyeball a witness when he testifies. You get to see him. You get to see how he reacts to questions, prosecution questions, defense questions. You get an idea for what kind of person you are dealing with.

        I would suggest to you that Shane Brandel and Dan Street are part of the new breed of policeman. These are men who are educated, intelligent, and well-spoken. They're not the coarse, muscle-bound brutes who can't find any other way of making a living.

The court that reversed the conviction concluded:

we find that a chief goal of the prosecutor's closing argument in this case was to inflame the passions and prejudices of the jury, uniting the interests of the jurors in their own safety with that of the interests of the State in convicting defendant. Such a goal is improper. The prosecutor in this case was not content to rely upon the strength of the State's evidence. He did not make a few solitary improper remarks. Instead, he utilized improper remarks, some unsupported by the evidence, to advance an "us-versus-them" theme. This theme was built piece by piece and is evident from the very beginning as the prosecutor launched his closing by portraying himself as a lone avenging champion. The theme continued throughout the prosecutor's argument and was advanced over objection and in spite of admonishment. The prosecutor suggested that police efficiency and expedience were more important than accuracy, and thereby urged the jurors to consider their own safety in deliberation rather than deliberating only on the actual guilt or innocence of defendant.

We will keep an eye on this case, as it is rare to see significant discipline imposed for closing argument misconduct. The excerpts taken from the charging document are but examples of the comments that led to reversal of the convictions. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2008/05/an-assistant-st.html

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