Washington Legal Defense
Free Consultation
Bad Prosecutor - Give It Up and Shut Up Get 150+ Years of Combined Litigation Experience on Your Side
Hester Law Group

Bad Prosecutor - Give It Up and Shut Up

A very recent case out of Division I holds that the following narrative during closing argument did not violate a defendant’s right to be present at trial:

“(the defendant) had the opportunity to read this discovery for 18 months, that he had the opportunity to hear what every witness said, and that he had the opportunity to tailor his story to fit the evidence after he heard it all.”

State v. Miller, ____ Wn.App. ____ (February 19, 2002).
The decision relied on a recent US Supreme Court opinion while reversing Washington precedent on this issue.

Previously the state Supremes held that it was improper for a prosecutor to argue to a jury that a defendant has had a “unique opportunity to be present at trial and hear all the testimony against him.” The court reasoned that that sort of comment violated on the defendant’s Sixth Amendment rights to be present at trial and to confront witnesses against him. Miller, supra., (citing State v. Johnson, 80 Wn. App. 337, 341 (1996).

Later, the state court allowed the rule from Johnson to be eroded a bit when it allowed the State to argue that the defendant had manufactured “an exculpatory story consistent with the available facts.” State v. Smith, 82 Wn. App 327, 335 (1996). As long as the focus of the argument was not on the exercise of the constitutional right itself, the court held that such an argument was acceptable. Id.

In 2000 the US Supreme Court held contrary to then-existing Washington case law in Portuondo v. Agard, 529 U.S. 61 (2000). The trial court in Portuondo allowed the prosecutor to state that the defendant, “unlike all the other witnesses,” had the benefit of “(getting) to sit here and listen to the testimony of all the other witnesses before he testifies.” Id., at 64. The Supreme Court rejected arguments that the statement violated the defendant’s Fifth, Sixth, and Fourteenth Amendment rights to be present at trial, to confront witnesses, and to due process.

Washington State Court of Appeals, Division One, thus held in Miller, that Portuondo “effectively overrules” Johnson and Smith and upheld the murder conviction in the case before it.


Success Stories

  • If he said he was going to do something he did it. He has integrity.

    “Wayne Fricke is a terrific lawyer who knows the law. The following are only several of many ways Mr. Fricke supported me during my time of crisis: 1. Explained the charges against me in a manner that ...”

    - Former Client
  • He always exceeds expectations.

    “Mr. Fricke has been our family lawyer for about 5 years. He has done an amazing job representing my family and I. He always exceeds expectations and informs us on everything going on.”

    - Jen
  • He, at no time, treated me as though I was guilty.

    “I was accused of domestic violence and need a Lawyer to defend me. Not knowing who to hire I started with Mr. K.W. This lawyer did not seem to believe in my innocence and I was looking at 3 to 5 ...”

    - Craig
  • Mr. Fricke had his office call me weekly for updates.

    “A few years ago, I was involved in a car accident. Due to my injuries, I hired an attorney who seemingly disappeared. I was in crisis after calling the court and finding out my case had been dismissed ...”

    - Sharyl
  • He is always honest and straight forward.

    “I hired Lance Hester to help me with 2 different legal matters. One was a felony criminal case and the other was a family law issue. In the felony criminal case this individual had everything to lose ...”

    - Former Client

Proven Results

  • Reduced Sentence Drug Crime
  • Case Dismissed Multiple Counts of Child Exploitation
  • Case Dismissed Domestic Violence
  • Four Felony Charges Dismissed Four Felony Counts
  • Reduced Sentence Drug Distribution
  • Vacated Conviction 4th Degree Assault
  • Case Dismissed Possession of Stolen Property
  • Two Restraining Orders Granted Anti-harassment Orders
  • Federal Court Success Federal Probation Violation
  • Case Dismissed Rape

Why Choose the Hester Law Group?

  • Accessible to Clients

    We understand the urgency clients have when they need an attorney. We are available  24/7 to help you.

  • We Truly Care

    We feel honored to help someone through the toughest time they will ever go through.

  • Personalized Approach

    At Hester Law Group, we use a personal approach that best suits the needs of our clients.

  • Unparalleled Experience

    We have been a successful team for two decades and have over 130 years of combined experience.

We're Available 24/7

Get Started on Your Defense Today
  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.