Friday, May 9, 2008

Conviction Reversed As Result Of Improper Argument

The New York Appellate Division for the First Judicial Department vacated a criminal conviction for what it characterized as egregious misconduct by the prosecutor in closing argument:

A reading of the excerpted text from the People's summation clearly illustrates that [acting as an unsworn witness] was what the prosecutor did in this case, except to a more egregious degree. In this case, where two witnesses, both appearing for the prosecution, offered conflicting, contradictory statements about what had happened during the taking of photographs from the observation post, it was obviously defense counsel's duty to draw attention to the inconsistencies. Moreover, defense counsel correctly suggested that, because only one of the statements could be true, one of the witnesses was possibly committing perjury. Further, knowing that the same issue of whether Police Officer Jeselson was in a position to witness the defendant handing the codefendant drugs in exchange for money had led to a mistrial the first time around, it was entirely reasonable for defense counsel to suggest that if perjury was being committed then the police officer had more to gain from it. In turn, this placed the prosecutor at center stage, since he was one of the parties present at the photographic session.

The prosecutor did not deny this. Indeed, he responded to defendant's comments by noting that any impropriety which purportedly occurred during this incident necessarily occurred in front of him, given his presence, but that his very presence made any impropriety unlikely. He also suggested that if he were to prosecute a case, where that type of misconduct had taken place, he should be fired. Further, the prosecutor said he had no explanation for the discrepancy, other than that Badger was mistaken.

On appeal, the People concede that the prosecutor vouched for Officer Jeselson, and that there are virtually no cases in which summation remarks, like those in this case, are made by an Assistant District Attorney. Nevertheless, the People argue that the prosecutor's summation was a necessary response to "a very personal defense attack" and that the prosecutor could not just "roll over" without reply.

A dissent disagrees (as dissents usually do):

A claim of prosecutorial misconduct on account of certain statements made by the prosecutor on summation is the principal issue presented on this appeal. I would affirm as I believe the prosecutor responded in a restrained manner to a reprehensible and unsupported personal attack on his integrity by defense counsel.

(Mike Frisch)

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