Where Zealousness Ends: Reversal
The excellent Florida ethics resource sunEthics has a post on a recent district Court opinion on prosecutorial misconduct
Fifth DCA reverses conviction and refers prosecutor to Florida Bar and local Professionalism Panel for “flood” of improper arguments that was so “deep, wide, and unrelenting” it “made a mockery of the constitutional guarantee of a fair trial.” [Added 3/7/17]
Defendant was convicted of lewd and lascivious molestation. He argued on appeal that he was denied a fair trial due to “egregious” improper argument by the prosecutor. Despite the fact that the improper argument was “compounded by defense counsel’s unexplained failure to object,” the Fifth DCA reversed.
Among the improper arguments made by the prosecutor were: referring to Defendant as a “pedophile” 7 times; using a “justice for the victim” closing argument; misstating evidence; calling Defendant a “liar;” “making nationalistic appeals to what sexual information the people of the United States do not want five year olds to have;” and ridiculing Defendant’s position with sarcasm. The court was critical of the prosecutor’s conduct, stating: “As we have stated for decades, we expect and require prosecutors, as representatives of the State, to refrain from engaging in inflammatory and abusive arguments, to maintain their objectivity, and to behave in a professional manner.” (Citation omitted.) The cumulative effect of the prosecutorial misconduct was fundamental error.
The court cautioned all participants in the criminal trial process: “Since there must be a retrial, we advise the attorneys who will prosecute and defend to carefully read our opinion and the many important cases which we have cited so that there will be no doubt where admirable advocacy ends and inappropriate, unfair closing argument begins. Armed with that knowledge, the prosecutor can zealously pursue justice, avoid snatching defeat from the jaws of victory, and dispense with a meaningful discussion with the Florida Bar or a local professionalism panel. Likewise, well informed defense counsel will be positioned to effectively advocate for Appellant by contemporaneously objecting to any perceived inappropriate arguments. Further, we note that trial courts have a duty, even without hearing any objection, to bring a swift and sure end to prosecutorial misconduct in closing argument, especially when it becomes as frequent and flagrant as in this trial.”
The court closed by referring the prosecutor to the Bar and the Professionalism Panel for further action. “[W]e also have a duty to take appropriate action concerning what we perceive to be several clear departures from professionalism and possible ethical violations on the part of the prosecutor. See Fla. Code of Jud. Conduct, Canon 3D(2); R. Regulating Fla. Bar 4–3.4(c), 4–3.4(e), & 4–3.5(a). If this argument had taken place in our court, we might have been able to take appropriate action by determining whether the prosecutor’s lapse in professionalism was intentional and deserving of some sanction or whether it would be better addressed by a strong rebuke from this court accompanied by directions for the prosecutor to become well educated on proper closing argument. However, we did not have that opportunity to directly address the attorney or the conduct. Accordingly, the action we take is to order the clerk of this court to provide the Florida Bar with a copy of this opinion, a copy of the trial transcript, and a letter identifying the attorney who prosecuted this case on behalf of the State at the trial court level, so that the Bar or on its referral, the Ninth Judicial Circuit’s Local Professionalism Panel, can decide how best to address this lawyer and the unfortunate conduct.” Rodriguez v. State, __ So.3d __ (Fla. 5th DCA, No. 5D15-3622, 2/10/2017), 2017 WL 548649.
(Mike Frisch)