Thursday, November 20, 2008

"We Have No Idea"

A majority of the Washington State Supreme Court declined to reverse a criminal conviction for prosecutorial misconduct in closing argument, notwithstanding its conclusion that the prosecutor had repeatedly misstated the burden of proof. The court quotes the closing at length:

       Ms. Snow [prosecutor]: We also are not clear about the
       size of the defendant's penis.  We have no idea.  And for them
       to ask you to infer everything to the benefit of the defendant is not reasonable.

              MR. CARNEY [defense counsel]:  Objection, your
       Honor.  Misstates the burden of proof and presumption of

              THE COURT:  Counsel, the objection is overruled.  Do
       you want to talk about it?  Come here.

               (At this time an off-the-record discussion was held.)

              THE COURT:  Let's move on, Counsel.

              MS. SNOW:  Reasonable doubt does not mean give the
       defendant the benefit of the doubt, and that is clear when you
       read the definition. 

              Defense counsel calls [S.S.]'s description of what
       happened a rambling eight-year-old's description.  And the
       bottom line for you is, it has been uncontroverted.

RP (Feb. 20, 2003) at 98-99.  The prosecutor continued with an appropriate
argument that the jury should not confuse a child's memory with credibility
and discussed child testimony concerning penis pumps, pornographic video
covers, bathing, and sexual touching.  Then the following transpired:

              Ms. Snow:  Finally, in this case I want to point out that
       this entire trial has been a search for the truth.  And it is not a
       search for doubt.  I talked to you about the fact that you must
       find the defendant guilty beyond a reasonable doubt.  That is the
       standard to be applied in the defendant's case, the same as any
       other case.  But reasonable doubt does not mean beyond all
       doubt and it doesn't mean, as the defense wants you to believe,
       that you give the defendant the benefit of the doubt.

              MR. CARNEY:  Again, your Honor --

At that juncture, the trial court gave a curative instruction and the argument proceeded without further improper references to the burden of proof. The majority found that prejudice had not been established under the circumstances.

There were two concurring/dissenting opinions (linked here and here) and a dissenting opinion.  (Mike Frisch)

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This is outrageous. I have no issue with being tough on crime after a fair trial. It is fundamentally unfair, and never harmless error, to allow a prosecutor to misstate repeatedly the burden of proof. I wonder if they would have "let this go" if the accusations were not so heinous. But there should be no double standard. This seems so basic as to be inarguable in any system of due process.

Posted by: Alan Childress | Nov 20, 2008 3:53:39 PM

A fundamental error is one which implicates the process itself rather than something taking place within that process. As outrageous as the prosecutor’s statements were, they did not invalidate the process. One could see the argument that an instruction from the judge could cure the error.

Nonetheless, this prosecutor’s actions are quite outrageous. The opinion tells us that he frequently used this course of argument. On a previous occasion, the point was argued before an appellate court and the conviction upheld because defence counsel had failed to timely object. Given that history, it is quite clear that this is not some imbecile who does not understand what he is doing. Rather, this is a prosecutor who is frequently using this trick with the knowledge that defence counsel will likely not spot the error and if he does, then worst case is that the judge will give a clarifying instruction.

Why has this prosecutor not been disciplined? Why is he still prosecuting cases? Why do the courts seem unwilling to throttle their own “ministers of justice”? So yes, I totally agree. This is outrageous.


Posted by: FixedWing | Nov 20, 2008 7:17:53 PM

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