Bad-Mouthing Defense Leads To Reversal

The Alaska Supreme Court found plain error and reversed a criminal conviction based on the prosecutor’s closing argument

The court of appeals found that the prosecutor’s statements “improperly denigrated the defense lawyer’s trial strategy by asserting that defense attorneys in general commonly engage in false ‘vilification’ of victims of domestic violence” and that “[t]he prosecutor was implicitly asking the jurors to reject Hess’s defense, not because the defense lacked evidentiary support, but instead because of . . . his unsupported accusation that defense attorneys commonly resort to underhanded or misleading tactics.”

We agree that these arguments were improper. Both this court and the court of appeals have previously condemned similar arguments as prosecutorial misconduct and emphasized that closing arguments must be restricted “to the evidence presented a trial and the inferences that may fairly be drawn therefrom.”  Alaska’s Rules of Professional Conduct place upon all attorneys the ethical obligation not to “allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence” and forbid a lawyer from asserting personal knowledge or stating a personal opinion about the issues before the trier of fact.  Rule of Professional Conduct 3.8 establishes special responsibilities for prosecuting attorneys; its accompanying commentary begins with the reminder that a prosecutor “has the responsibility of a minister of justice and not simply that of an advocate.”  The American Bar Association’s Criminal Justice Standard 3-6.8(c) reiterates these obligations, stating that “[a] prosecutor should not make arguments calculated to appeal to improper prejudices of the trier of fact.”  The comments in the closing arguments here attacking the defense attorneys and accusing Hess’s counsel of vilifying the victim clearly violate these standards and were obvious error.

The error affected substantial  rights

The prosecutor’s comments here likewise affected important rights that could affect the fundamental fairness of the proceeding. The prosecutor suggested that the jury should consider his personal opinion of defense attorneys and Hess’s defense strategy.  The prosecutor’s attack on the defense strategy and defense counsel was inappropriate, the comments were of no probative value, and they created a high potential for unfair prejudice.

And caused prejudice

The prosecutor made several separate comments attacking the defense. He made them both during his initial closing argument and again during rebuttal. The trial court did not give a curative instruction. The improper statements went directly to the defense’s theory of the case and aimed to discredit the defense attorney as well as her argument.

The Court of Appeals had affirmed . (Mike Frisch)