A Disturbing Argument But An Affirmed Conviction

The Florida fourth District Court of Appeals sharply criticized a prosecutor’s closing argument but did not disturb the sexual battery of a child conviction.

The argumment

During closing argument, the State prosecutor described Appellant’s confession as “disgusting” and “disturbing,” and opined: “First of all, it is not consensual sex. That is bad enough. It is rape . . . . It is torture. He tortured her. He tortured her for weeks, and he had her keep his secrets.” The prosecutor continued, “we put on a lot of evidence that indicated this was not consensual in any way, shape or form. This was torture. This was rape. That is what makes it worse. That is what makes it a lot worse, a lot worse.”

The prosecutor implored the jury to “[f]ind [Appellant] guilty so [G.W.] can move on, try to repair her relationship with her mother, try to repair the rest of her life . . . . That is what she needs.” Last, the prosecutor asked the jury to imagine what really must have happened between Appellant and G.W.: “Can you imagine what really must have happened? . . . Can you imagine how bad it must have really been[?]”

The argument was understandable but wholly improper

 We understand the reasons for the passion expressed by the prosecutor. However, our system is not one of passion, but one of law. It must be understood that there are two distinct components to a criminal trial—the determination of innocence or guilt and, if the latter, sentencing. The impact of the crime on the victim is best addressed at the sentencing hearing, with attention to proving the objective elements of the charges the focus of the trial itself. Here, the State made several impermissible comments during closing that (1) appealed to the jury’s emotions, (2) improperly bolstered its argument, (3) constituted personal opinion, and (4) misstated the jury’s obligation to find Appellant guilty beyond a reasonable doubt. Nonetheless, as discussed above, these errors in this case did not rise to the level of fundamental error. Accordingly, we affirm.

Hat tip to sunEthics. (Mike Frisch)