Tuesday, April 28, 2009

Naming Names

Courtesy of the very fine Florida ethics web site sunEthics is an interesting case involving improper closing argument by a prosecutor in a murder case. The Florida Third District Court of Appeal concluded that the evidence of guilt was overwhelming and affirmed the conviction. The prosecutor had contrived an incriminating  dialogue between the defendant and another, that the defendant was not a "nice guy,"and that witnesses were afraid to come forward. The trial judge had compounded the error by overruling defense objections.

 A reluctant concurring opinion notes:

The only viable argument in this case is that the errors were harmless. I must reluctantly agree. Inexplicably, the prosecutor in this case felt obligated to push the envelope by inventing dialogue, attacking [the defendant's] character and blaming the lack of witnesses on fear of [the defendant]. The prosecutor must have felt that the admissible evidence in this case was insufficient to convict, otherwise he would not have injected such obvious error into the proceedings.

Over the years, it has been my unfortunate experience to see a long procession of assistant state attorneys repeatedly violate clear precedent in their zeal to convict. It is either that these prosecutors are untrained, that they do not trust juries, or that they feel that their behavior has no consequences. They do not even have to face an appellate panel's questions during oral argument. If nothing else, I will henceforth publish their names so that thier questionable tactics appear in the permanent record of the Southern Reporter.

One remedial possiblity is bar discipline. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2009/04/courtesy-of-the-very-fine-florida-ethics-web-site-sunethics-is-an-interesting-case-involving-improper-closing-argument-by-a-p.html

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Comments

I am pleased to see that our prosecutoral system is getting a closer inspection. About time too.

You are correct about bar discipline being one remedy. Indeed, it appears to be the only remedy at the moment.

Stephen

Posted by: FixedWing | Apr 28, 2009 10:28:26 AM

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