The limits of proper argument

"The limits of proper argument" is a phrase I use to describe a topic we cover in class related to whether there should consequences for what attorneys say at trial. Mike Frisch of The Legal Profession Blog reports today that the Kansas Supreme Court has added a new case on this subject.

In a case called State of Kansas v Decker, available here, the Court held that even though the prosecutor exceeded the limits of approved rhetoric, his misconduct "did not rise to the level of being so gross and flagrant as to constitute plain error."

Judge for yourself. During his closing argument in a felony murder trial, the prosecutor stated:

"They [are] saying that Brandi shook the baby when? She shook the baby that night while she's in there feeding her putting her to bed, is that what they want you to believe? They are saying that there's a reasonable doubt about that, that you don't know who did it. Well, you do when you look at all the evidence. And another thing is he's no longer presumed innocent. Case is in. Evidence is in. At this point based on everything that we've proved, he's guilty." (Emphasis added.)

The Court concluded that "[i]t does appear that the prosecutor was attempting to convey that the State had overcome the presumption of innocence by "everything that [it] proved." We see no manifestation of ill will. . . . The comment likely had little weight in the minds of the jurors, and we find that the error was harmless." The court rejected a number of other contentions and affirmed the conviction.