matt solin

The deprivation of an individual’s liberty should never turn upon the theatrical presentation of arguments or evidence, the volume and tone of an advocate’s voice, or due to physical acts of intimidation.

I love reading about prosecutorial misconduct, and court responses to it. Part of that is because I am undoubtedly defense-oriented, I’ll admit. Another part is because the conduct is usually so outrageous. When defense attorneys end up in appellate opinions it’s generally because they were ineffective, but when prosecutors do, it’s because they were too effective. But part of the appeal for me is because the lessons written into these opinions are generally more common-sense, applicable to all lawyers. A court explaining why an attorney crossed the line of decency isn’t dealing with an esoteric legal rule (Rule Against Perpetuities, I’m looking at you), it is guiding the profession directly. In this case, what I find fascinating is the connection between the prosecutor’s conduct and reasonable doubt.

All the way back in August, the Pennsylvania Superior Court sent down an opinion (which can be found here) affirming a trial court’s order for a new trial. The criminal court in Venango County (wherever that is) had ordered the new trial for the defendant, who was accused of beating up a 1-year-old, because the prosecutor had gone too far in his condemnation of the defendant.

But what is too far?

The role of a defense attorney, as I have seen it, is to convince the jury or judge that while your client is not a saint, he didn’t do this particular bad thing, or at least may not have. The burden of proof is on the State or Commonwealth, and that is a fact that makes it into every single closing argument. The defense attorney tells the jury to focus on the legal arguments. Failing that, there is a probability argument to be made. Finally, an acknowledgment of the defendant’s flaws is humanizing. All of these things theoretically make the defense attorney’s job easier (although in reality, criminal defendants do end up bearing a de facto burden. Where is your alibi? What were you doing at the scene of the crime, if not committing it? If not you, then who?)

Prosecutors, on the other hand, have it way harder. They have to prosecute most of the cases that come across their desk, taking the word of a witness or police officer as gospel truth. On the one hand, they have the benefit of police investigations, experts, and the credibility of police officers (usually) to help their case. But on the other hand, they have to convince the judge or jury that what the defendant is charged with absolutely happened, and happened how the witness says it happened. “Beyond a reasonable doubt” is a high burden, and any doubt on the part of the prosecutor can be fatal to a case. A jury can tell when the State’s attorney doesn’t believe his or her own witness, and they won’t believe the witness either. All of this gives rise to the need for the prosecution to look absolutely certain of the defendant’s guilt, even if they’re not.

Thus, situations like the case I started talking about happen:

First, “[d]espite instruction by the Court to cease doing so [during both opening and closing arguments], the [prosecutor] continued to physically intimidate the Defendant during his closing argument by invading the personal space of the Defendant and his attorney by pointing his finger in their faces.”

The prosecutor “menaced” the defendant and his attorney by going right up to the table where they were sitting, pointing and gesticulating at them. Drama and emotion play well to juries. That’s why court rules keep them to a minimum. Then it becomes personal:

the prosecutor told the jury that Culver was “the most unreliable historian we’re ever going to meet[,]” “probably the most unreliable, unbelievable person that you are ever going to come across[,]” and that Culver was “lying, lying, lying, lying, and lying.” Id. at 18 (citing N.T., 3/19/10, at 109, 140, 141). The prosecutor also told the jury during closing arguments that Culver was “somewhat the compulsive or pathological liar . . . .”

Not only did the prosecutor seek to prove that the defendant did the crime, but he also wanted to show that the defendant was a BAD GUY. If he’s a BAD GUY, then the jury will convict him, even if the actual evidence does not rise to the level. With the evidence that prosecutors are generally given, I believe that reasonable doubt, properly applied, would eliminate many cases from the docket. I couldn’t say how often any given prosecutor actually believes beyond a reasonable doubt that any particular defendant is guilty, but I think that it’s probably less than they say they are sure.