Tuesday, April 28, 2009

Yet another case of prosecutorial misconduct

Not too long ago I posted some comments on recent cases involving improper arguments by prosecutors (see here and here. Also, see here for other comments on cases involving other types of prosecutorial misconduct.)

Here is another case regarding improper arguments by a prosecutor. In this case, the Florida Third District Court of Appeal concluded that "while we find that the statements were improper, we affirm the defendant's convictions because, based on the overwhelming evidence of guilt, the error was harmless."

The Court concluded that "we again find it necessary to admonish the prosecutor and remind all lawyers who practice in this state, that closing arguments must be confined to the evidence in the record or which can reasonably be inferred from the evidence. . . . Additionally, closing arguments “must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant rather than the logical analysis of the evidence in light of the applicable law.” . . . “Trial attorneys must avoid improper argument if the system is to work properly. If attorneys do not recognize improper argument, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar.”"

In a "reluctant concurring opinion" Judge Ramirez wrote that "Over the years, it has been my unfortunate experience to see a long procession of assistant state attorneys repeatedly violate clear precedent in their zeal to convict. It is either that these prosecutors are untrained, that they do not trust juries, or that they feel that their behavior has no consequences. They do not even have to face an appellate panel's questions during oral argument. If nothing else, I will henceforth publish their names so that thier questionable tactics appear in the permanent record of the Southern Reporter. I reluctantly join today’s decision, mindful that I may be promoting the notion that winning is more important than giving defendants a fair trial. But given the overwhelming evidence of Williams’ guilt, I have to agree that under State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986), “there is no reasonable possibility that the error contributed to the conviction.”

But here is a question for all the judges: if they all agree that the prosecutor engaged in improper conduct, and that the conduct requires the court to remind lawyers that if they don't understand their roles "they should not be members of the Florida Bar", how come they do not suggest imposing discipline in this case?

The opinion is available here.

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