Prosecutors are charged with representing a form of government whose interest rests not in winning a case but that justice be done. A prosecutor is a minister of justice who may not seek a conviction at any price. State v. Hoppe, 2002 Minn. App. LEXIS 295 (2002). Frequently a defendant, in an effort to find any basis for appeal, will claim prosecutorial misconduct produced his conviction rather than a fair and impartial trial. In most instances, these charges are dismissed by the reviewing court as groundless. Occasionally, however, the court’s evaluation of the prosecutor’s conduct is deemed to have created substantial prejudice such that the defendant was denied due process. In rare instances, a finding of prosecutorial misconduct has risen to the level where reversal is considered the proper outcome. The following cases demonstrate instances where charges of prosecutorial misconduct have been sustained.

Alonzo Morris, Jr. v. State, No. 258, 2000, Supreme Court of Delaware, 2002 Del. LEXIS 198 (2002). The Supreme Court of Delaware reversed defendant’s conviction of first-degree assault and possession of a deadly weapon during the commission of a felony. At trial, the prosecutor told the jury they could acquit the defendant only if they found the state’s witnesses lied. On appeal, the defendant charged the prosecutor made several improper statements during the closing argument that misrepresented the testimony of an officer as to a critical time frame of interaction with the defendant. Specifically, on direct, the officer indicated he encountered the defendant between 8:10 or 8:20 a.m. On cross-examination, the officer conceded the time frame might have been closer to 8:30 or 8:45 a.m. On re-direct the officer indicated that there were approximately 30-40 minutes from his encounter with the defendant to his arrival at the victim’s home. The time frame was critical for defendant’s alibi defense. In his closing argument, the prosecutor extrapolated a time frame slightly different from that testified to by the officer, putting the time of arrival closer to 8:10-8:15 a.m., thus raising questions regarding the defendant’s alibi defense. On evaluation, the court stated the prosecutor did not materially misrepresent the officer’s testimony during closing argument and thus, this argument did not support the defendant’s charge of prosecutorial misconduct.

The defendant also charged the prosecutor made reference in rebuttal summation, to facts not in evidence relating to whether the view of a witness was blocked by a large building. One officer testified he has seen and waved to the defendant who was standing on the side of street as the officer passed by. The time frame in which the officer testified he had seen the defendant supported the defendant’s alibi. The prosecutor sought to impeach the officer’s testimony contending a two-story house would have blocked the officer’s clear view of the defendant. The officer did not agree the house might have blocked his view on the morning of the assault, but rather the officer testified he had not noticed the house. There was no further testimony regarding the house blocking the officer’s view. In closing, the prosecutor sought to minimize the officer’s testimony which supported the defendant’s alibi, and commenting on the testimony, argued to the jury that the defendant’s case “certainly did not hinge on that testimony.”

On appeal, the state justified its trial approach by arguing a prosecutor may properly draw legitimate inferences of the defendant’s guilt that flow from the evidence. While the court agreed with the prosecutor in the abstract, it found the inferences drawn by the prosecutor did not give the prosecutor license to misrepresent the evidence presented at trial. Here the court found the prosecutor’s assertion regarding the officer’s view of the defendant being blocked by a house had no evidentiary support and therefore was a misrepresentation of the evidence.

The defendant also argued the prosecutor improperly distorted the state’s burden of proof in his closing argument by telling the jury they must find the state’s witnesses lied in order to exonerate the defendant. In response, the reviewing court indicated the jury was not required to choose between the state’s and the defendant’s version of the facts and the defendant had no affirmative burden to disprove the testimony of the opposing witnesses.

Having found the prosecutor’s line of argument to be both egregious and patently improper, the court then undertook a plain error analysis. In order to successfully constitute plain error, the court required several issues be present: credibility must be a central issue in a close case and any improper statements must be so clear that combined with defense counsel’s failure to object, there is no reasonable alternative by the trial court other than to intervene. Here the court found the prosecutor’s attack on the credibility of the officer’s statement as to his view of the defendant was indisputably a central issue. This attack combined with the additional instances of prosecutorial misconduct however minor, in the aggregate, constituted plain error sufficient to require a reversal.

People v. John Lewis Tolliver, D038309, 2002 Cal. App. LEXIS 3658 (2002). Tolliver appealed his conviction of robbery and assault claiming his trial was rendered fundamentally unfair as a result of repeated prosecutorial misconduct that was not objected to by his trial counsel. At trial the robbery was linked to a local gang and the identification testimony linking the defendant to the robbery was minimal.

While cross-examining the defendant’s alibi witness, the prosecutor called him a liar and implied to the jury the witness was comfortable lying to them asking him if “it’s easy to lie to the jury?” When the defendant took the stand, the prosecutor asked him why another witness, Owens, would come into court and make up things about him. Through this cross-examination, the defendant admitted he had a history of hostility with Owens. Having elicited this history, the prosecutor then attempted to introduce a statement made to an investigator by a third party indicating both he and Owens had seen the defendant the night of the robbery. When this statement was objected to, the prosecutor indicated it was not being offered for hearsay purposes, but to impeach the defendant.

The prosecutor elicited testimony from other witnesses that the robbery had been committed by members of a well-known local gang and that the defendant had ties to this gang. Establishing the defendant’s ties to the gang reflected on his character rather than his association with this crime. Further, while on the stand, the prosecutor questioned the defendant regarding prior convictions of theft in which he had also asserted an alibi defense as in the case before the jury. The prosecutor went on to ask him if he had previously lied to police in order to get out of other charges.

In establishing its analysis of prosecutorial misconduct in this case, the court observed that isolated instances of misconduct, or repeated instances of less prejudicial misconduct would not lead to sufficient prejudice for reversal. The court reiterated that defendants are entitled to a fair trial, not necessarily a perfect trial. Here, however, the cumulative effect of the questioned conduct deprived the defendant of a fair trial.

By calling the defendant’s alibi witness a liar in front of the jury and suggesting the witness was comfortable lying to the jury, the prosecutor ensured the trial would be less than perfect. The court interpreted the prosecutor’s efforts to stress the defendant’s gang association as an effort to bolster the weak identification made by the state’s witnesses regarding the defendant’s direct involvement in the robbery. The attempt to introduce a hearsay statement to impeach the defendant’s testimony as well as the attempt to impeach his credibility through his prior conviction rendered the trial sufficiently unfair such that the subsequent conviction denied the defendant due process. While indicating it was not in a position to speculate, the court raised the issue that it was entirely possible the jury might have convicted the defendant even in the absence of the identified prosecutorial misconduct. Reversed.

State v. Thomas, S02A0264, Supreme Court of Georgia, 2002 Ga. LEXIS 320 (2002). The defendant was on trial for murder, felony murder and aggravated assault. During the trial, through expert testimony, she asserted a defense of battered women’s syndrome. During the proceedings the defendant asked for a mistrial on the premise the prosecutor intended to goad an expert witness into testifying the defendant told him she had previously abused her child. The rationale the defense asserted was that the prosecutor intentionally wished to abort the trial. The defendant filed a plea of former jeopardy that was granted by the court. The state appealed.

At trial the state presented its case and rested. The defense called an expert witness who was asked by the prosecutor whether the defendant had previously told him she had abused her child. The defense objected and the state was given an opportunity to explain the rationale for this line of questioning. The state offered various explanations and conceded the question was poorly phrased. A mistrial was granted. The lower court ruled the prosecutor did intentionally provoke a mistrial but should be given the opportunity to retry the defendant.

In reviewing this case, the Supreme Court of Georgia concluded the prosecutor intentionally provoked a mistrial. Its conclusions arose from the fact the prosecutor was an experienced member of the bar and had tried numerous felony cases. Further, the prosecutor was unable to provide a consistent, convincing explanation why the question concerning previous abuse had been asked of the expert witness. When this matter was questioned, the prosecutor failed to seek a curative instruction and finally, because the testimony of the expert witness was favorable to the defendant, the prosecutor stood to gain from the termination of the trial. The court found provoking a mistrial was intentional. Affirmed.

State of Minnesota vs. Walter Paul Hoppe, 2002 Minn. App. LEXIS 295 (2002). The defendant was convicted of gross misdemeanor driving while intoxicated after the BAC reading indicated his blood alcohol level was .15. During a motion for new trial, the defendant claimed several instances of prosecutorial misconduct prompted his conviction.

At trial, the jury was made aware of the defendant’s numerous convictions for driving under the influence. In his closing argument, the prosecutor commented to the jury that based on the defendant’s prior convictions, he had a serious drinking problem and potentially would continue to drink and drive unless the jury returned a guilty verdict. The prosecutor implied to the jury that a guilty verdict was necessary to protect society and belittled the defendant’s defense.

After the trial court denied the defendant’s motion for new trial, the defendant argued the prosecutor improperly referred to his prior criminal record and suggested these convictions indicated his propensity to commit future driving violations involving alcohol. In evaluating the charges of prosecutorial misconduct, the court indicated that while a criminal record could be used to impeach a defendant’s character, such records could not be used to gratuitously attack the defendant’s character. Additionally, the court found it was improper for the prosecutor to attempt to inflame the jury’s prejudices by implying a conviction was necessary to protect society from the defendant’s inability to abstain from drinking and driving. It found that it was improper for the prosecutor to attempt to shift the burden away from a determination as to whether the state had met its burden for conviction. It found that the remarks of the prosecutor could be construed as calculated to send a message via a guilty verdict or that they needed to convict in order to protect their loved ones and that such remarks constitute misconduct.

Finally, the court held it was improper to disparage the defendant in closing arguments. The prosecutor referred to the defense argument as “ridiculous” and chastised the jury not to be “snowed” by it. The court concluded that the state’s closing argument, taken in its totality, exceeded the bounds of ethical professional summation. The court concluded the state had good evidence against the defendant and need not have resorted to these actions to obtain a guilty verdict. Reversed.

State v. John Butler, No. 01AP-590, 2002 Ohio App. LEXIS 1423 (2002). Defendant was convicted of aggravated murder with a specification and aggravated robbery. He appealed, claiming among other issues, the prosecutor improperly commented during the state’s closing argument on the defendant’s failure to testify.

On appeal, the court determined the state’s drawing attention to and commenting upon the defendant’s failure to testify was improper. Further, the court concluded the evidence against the defendant in these allegations was not overwhelming. In light of the dearth of evidence against him, the prosecutor’s comment on his failure to testify combined to prejudice the defendant and constituted reversible error.

State v. Oscar Casas, No. 2001-522-C.A., Supreme Court of R.I., 2002 R.I. LEXIS 49 (2002). A pretrial hearing was conducted prior to defendant’s drug trial to suppress a statement made by the defendant to a police officer that the officer had been chasing him for years. By the commencement of the trial, a ruling on the issue of the hearing had not been rendered. At trial, the prosecutor referred to defendant’s statement that was the subject of the hearing and the defendant moved for a mistrial. The jury was excused and before a mistrial was declared, the judge asked the defendant whether, in his opinion, the prosecutor’s conduct was deliberate, in bad faith or designed to cause a mistrial. Defense counsel indicated he had no knowledge of these. A mistrial was promptly granted.

The defendant then moved to dismiss the indictment on the ground he had been compelled to move for a mistrial based on the prosecutor’s opening statement that an officer from the Rhode Island State Police had been investigating the defendant’s drug trafficking for a number of years. During the hearing, defense counsel maintained that since the prosecutor was on notice that the issue was the subject matter of the pre-trial hearing, the state had intended to get this evidence before the jury. Therefore, the defense counsel concluded, the state’s actions were deliberate and sufficiently improper to warrant dismissal of the indictment.

The state countered arguing the statement was made merely to give the jury an idea why the officer was focused on the defendant. The trial court refused to dismiss the indictment and found the pre-trial motion did not place the state on notice that the subject matter of the motion was inadmissible evidence and should be avoided. However, the court found the state’s use of the term “drug trafficking” was fatally prejudicial and amounted to a declaration by the state that the defendant had been involved in serious criminal activity for many years when in fact the trial matter was the defendant’s first arrest. The trial court found there was no evidence the state attempted to goad the defense into moving for a mistrial and therefore denied the defendant’s request to dismiss the indictment.

On review, the Supreme Court of Rhode Island disagreed with the trial court’s conclusion that the state was not placed on notice regarding the status of the defendant’s statement. However, the court determined that given the fact the disclosure was made during the prosecutor’s opening statement, it was evident the statement was not made to prematurely terminate the proceedings. Therefore, there was no evidence the state intentionally goaded the defense into requesting a mistrial. Request to dismiss the indictment denied. Remanded.