Sometimes cases catch my eye for what they fail to say rather than for what they do say... Such is the case with a recent decision out of the Illinois Court of Appeals called People v. Moore which is available here.
In this case, the defendant argued he was denied a fair trial and that his conviction should be reversed because, among other reasons, the prosecution made a number of improper comments during opening and closing statements.
One of the statements in question was a remark that the defendant gave another person a car in exchange for the other person's silence about the defendant’s alleged criminal conduct. The prosecutor then added the following: "I have no doubt that [the car] was a gift for his silence." Even though the prosecutor did not present any evidence that the car was given as a gift, he brought it up again in closing saying that the defendant gave the car to the other person as a gift, “maybe sharing in the proceeds, maybe trying to insure their silence."
The comments were improper. When addressing the jury during an opening or closing statement, a prosecutor simply cannot say he or she "has no doubt" about anything. When the prosecutor expressed he had no doubt about the meaning of the defendant’s conduct during the closing statement, the defendant's attorney objected. The trial judge should have granted the objection and admonished the prosecutor or said something to the jury about it.
The prosecutor violated Illinois Rule of PC 3.4(e) which explicitly states that a lawyer shall not ". . . allude to any matter . . . that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused. . ."
So what does the court do about all this? Nothing. While recognizing, in the abstract, that a prosecutor’s statement of personal belief is improper, it did not make any mention of the fact that the prosecutor violated the rules of professional conduct. The court also gave the prosecutor a pass on the other statement even though it stated in passing that the prosecutor's claims that the defendant tried to buy the silence of a witness was “unfounded.”
Instead, the court limited itself to solving the argument as it related to the possible reversal of the conviction. Citing precedent cases, the court explained that prosecution comments do not require reversal unless they result in "substantial" prejudice, which has been defined as a substantial impact on the jury's verdict. Since the court did not think the record supported this conclusion, it held the argument was insufficient to support a reversal.
Regardless of whether that is the correct result, I think the court should have admonished the prosecutor and explained the misconduct to make sure other prosecutors will not make the same mistake in the future. The court essentially took a view that can best be described as “no harm – no foul.” Unfortunately, this type of approach does not do much to teach the participants in the criminal justice system the limits of proper advocacy.