By Casey Arbenz, October 2016
Our Supreme Court has recently handed down several opinions reversing serious cases because the prosecutor in the case committed misconduct. In several of the cases, the facts weighed heavily in favor of conviction, but the Court still found the conduct of the prosecutor to be so flagrant and ill-intentioned that reversal was required. I have written several appeals lately and found improper prosecutorial statements in almost every closing and rebuttal closing I have reviewed. The following body of law outlines what to look out for in trial or during appellate review:
Prosecutorial misconduct denies a defendant the right to a fair trial and necessitates a new trial if there is a substantial likelihood that the conduct affected the verdict. State v. Echevarria, 71 Wn. App. 595, 597, 860 P.2d 420 (1993). Where the misconduct implicates the constitutional rights of the defendant, reversal is required unless the error is harmless beyond a reasonable doubt. State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996). Even in the absence of an objection by the defense, reversal is still necessary if the remarks were so flagrant or ill-intentioned that no curative instruction could have obviated the prejudice. Echevarria, 71 Wn. App. at 597. A defendant arguing prosecutorial misconduct in an appeal or PRP must establish the impropriety of the state’s comments and their prejudicial effect. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006).
Many of the recent reversals were in response to comments and illustrations presented to jurors during the prosecutor’s closing argument – despite the well-established principle that “the prosecutor has a special obligation to avoid ‘improper suggestions, insinuations, and especially assertions of personal knowledge.’” United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)(quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629 (1935)). Indeed, numerous Washington cases have found misconduct where the prosecutor improperly vouched for a witness or made an explicit statement of personal opinion as to a witness’s credibility. See, e.g., State v. Allen, 161 Wn.App. 727, 746, 255 P.3d 784, review granted, 172 Wn.2d 1014 (2011); State v. Horton, 116 Wn.App. 909, 921, 68 P.3d 1145 (2003).
In In re the Pers. Restraint of Glasmann, 175 Wn.2d 696, 286 P.3d 673, 675 (2012) our Supreme Court stated:
The right to a fair trial is a fundamental liberty secured by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 22 of the Washington State Constitution. Prosecutorial misconduct may deprive a defendant of his constitutional right to a fair trial. “A ‘”[f]air trial” certainly implies a trial in which the attorney representing the state does not throw the prestige of his public office … and the expression of his own belief of guilt into the scales against the accused.’”
Id. At 677 (internal citations omitted).
The Court in Glassman went on to cite the commentary on the American Bar Association Standards for Criminal Justice std. 3-5.8, which holds:
The prosecutor’s argument is likely to have significant persuasive force with the jury. Accordingly, the scope of argument must be consistent with the evidence and marked by the fairness that should characterize all of the prosecutor’s conduct. Prosecutorial conduct in argument is a matter of special concern because of the possibility that the jury will give special weight to the prosecutor’s arguments, not only because of the prestige associated with the prosecutor’s office but also because of the fact-finding facilities presumably available to the office.
Glasmann, 286 P.3d at 679 (quoting American Bar Association Standards for Criminal Justice std. 3-5.8)(emphasis added).
When a prosecutor makes a personal observation or statement about the evidence or about the credibility of a witness, he or she is seen to have testified in the case. Such testimony is improper – as jurors see prosecutors as members of a “prestigious office.” Additionally, where jurors believe prosecutors have inherent “fact finding facilities,” any argument suggesting a prosecutor “knows what happened” is particularly prejudicial.
A defense advocate at trial must be poised and ready to object when this occurs and an appellate lawyer must be on the lookout during review. Otherwise, this serious misconduct will continue and our clients will be denied their right to a fair trial.