Monday, February 11, 2013

No Reversal For Prosecutor Whispering In Closing argument

The Washington Court of Appeals, Division Two found prosecutorial misconduct but declined to reverse a criminal conviction.

Among the violations - the prosecutor stood close to the jury and whispered inaudibly in closing argument.

The court majority found that the judge's resulting instruction to the prosecutor to repeat what was said was insufficient.

The opinion lays out in painful detail the acrimonious relationship between prosevutor and defense counsel.

There is a dissent

I am satisfied that the prosecutor's personal attacks on defense counsel, labeling counsel's closing argument a "crock," and his characterization of Holmes and her testimony ("funny, "disgusting," and "comical") engendered prejudice which infected the whole trial.  Emery, 174 Wn.2d at 762.  I am also unwilling to gloss over the prosecutor's improper discussion of the burden of proof and reasonable doubt in closing, and his whispered comments to the jury.  I would reverse and remand for new trials for both [defendants].

(Mike Frisch)

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