Wednesday, February 3, 2016

Intended To Annoy

The Maine Supreme Judicial Court rejected a criminal defendant's claim for a new trial based in part on the alleged misbehavior of the prosecutor.

While the court found misconduct, it did not deny the defendant a fair trial.

There was misconduct in arguments and

An evidentiary hearing on the motion was held in June 2014.3 At the motion hearing, Jason Dionne, an attorney who was not otherwise involved in the case, testified that he was present in the courtroom during closing arguments. Dionne testified that as he was observing Robinson’s closing argument, he saw the prosecutor respond to defense counsel’s rhetorical questions that were designed to demonstrate that Robinson could not have known the information necessary to commit the crime (“How does [Robinson] know that [Fesmire’s] going to a family reunion?”). Dionne saw the prosecutor gesture toward Robinson and mouth the words, “He did,” or “He did it.” Dionne further testified that he saw at least five jurors turn toward the prosecutor.

The prosecutor also testified at the hearing and denied any such behavior, stating that he did not intend to send a message to the jury. A detective who had sat next to the prosecutor and a second detective who was in the back of the courtroom during defense counsel’s closing  did not see the prosecutor gesturing or attempting to communicate with the jury.

 During the motion hearing, Robinson also developed evidence that as his attorney was presenting his closing argument, the prosecutor either was or appeared to be sleeping. During his testimony at the motion hearing, the prosecutor admitted that he likely closed his eyes, put his head back, and feigned sleep in order to annoy defense counsel. He said, however, that he did not intend for this conduct to be a message to the jury.

(Mike Frisch)

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