Friday, September 13, 2019

Prosecutorial Misconduct: Profane Argument

Prosecutorial misconduct has led to a new trial on sexual assault in the first degree charges from the Wyoming Supreme Court.

The court found that the prosecutor had intentionally misstated evidence in argument and presented testimony that violated the parameters of a court ruling

Also misconduct

The prosecutor’s use of profanity was entirely unnecessary to his presentation of the timeline. Instead, it was an obvious attempt to invoke feelings of anger, indignation, and outrage in the jury about what Mr. Bogard allegedly did to SK in the bathroom. Mr. Bogard has therefore established that the prosecutor violated the clear and unequivocal rule of law in a clear and obvious way.

The word at issue starts with an F. 


we agree with Mr. Bogard that this is a “she said, he said” sexual assault case, with the State primarily relying on the credibility of SK’s testimony to prove lack of consent. We will evaluate whether Mr. Bogard’s substantial right to a fair trial was prejudiced by the prosecutors’ misconduct in this context...

We agree with Mr. Bogard that much of the prosecutorial misconduct went to the very heart of SK’s and his credibility on the central issue of consent, which, as the district court instructed, was an issue of material, consequential fact. When the prosecutor repeatedly stated that SK was “sobbing,” “sobbing uncontrollably,” and “sobbing hysterically,” he simultaneously bolstered the State’s argument that SK did not consent and undermined Mr. Bogard’s credibility with facts not in evidence. The prosecutor’s references to Ms. K’s “negative experience” implied that if Mr. Bogard did something unsavory to Ms. K at his apartment, he probably also assaulted SK at the Ranger, thereby bolstering SK’s credibility and undermining Mr. Bogard’s credibility. See W.R.E. 404(b) (noting that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.”). The prosecutor’s gratuitous use of inflammatory language when he stated that SK was “led to the after party, not led to go hook up and get f[***]ed in a bathroom” encouraged the jury to convict Mr. Bogard based on anger and outrage instead of the evidence. The prosecutors’ improper victim impact argument placed the focus on the victim’s suffering, instead of the evidence, in a case where the State’s evidence was not overwhelming.

Justice Kautz dissented

The majority labels four circumstances in Mr. Bogard’s trial as prosecutorial misconduct and concludes they cumulatively deprived Mr. Bogard of a fair trial. I agree with only one small portion of the majority’s opinion. The prosecutor’s use of foul language during closing argument was unnecessary and inappropriate. I disagree, however, that the other three complained of incidents either rose to the level of prosecutorial misconduct or that we can tell they did so on a cold record. In the absence of two or more errors, there can be no cumulative error.

The dissent on the F bomb

The majority concludes the prosecutor committed misconduct by intentionally using “abusive” language during closing argument calculated to inflame, prejudice and mislead the jury. I agree the use of foul language was not necessary to the point he was making (outlining the sequence of events as they were reflected in the surveillance videos) and was inappropriate. While SK testified Mr. Bogard told her she “‘was too fucking tight’” and yelled “‘what the fuck’” during the assault, it does not appear the prosecutor’s choice of similar language during argument was to reflect the evidence.

The misconduct, however, cannot have had the effect of influencing the jury against Mr. Bogard. In fact, the prosecutor’s poor word choice likely helped Mr. Bogard, as I imagine at least some of the jurors were as offended by it as we are. Perhaps that is why defense counsel did not object. Moreover, the misconduct consists of a single-word in a lengthy closing argument during a five-day trial. The trial court could have, and in my opinion should have, admonished the prosecutor for his lack of decorum. However, the prosecutor’s vulgarity was an offense to the dignity of the court, and logically could not have diminished Mr. Bogard’s right to a fair trial.

The trial jury had acquitted the defendant on kidnapping charges. (Mike Frisch)

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