Over The Line

The Massachusetts Supreme Judicial Court reversed a second degree murder conviction for prosecutorial misconduct in cross-examination of the defendant and closing argument.

A primer in improper cross

As a general matter, trial attorneys are allowed to pursue vigorous cross-examination. However, there are limits. First, it ordinarily is improper for a prosecutor to suggest that a defendant “tailored” his testimony to conform with the evidence he heard at trial. Commonwealth v. Martinez, 431 Mass. 168, 177 & n.9 (2000), quoting Commonwealth v. Person, 400 Mass. 136, 139 (1987). Second, “[i]t is a fundamental principle that ‘a witness cannot be asked to assess the credibility of his testimony or that of other witnesses.'” Commonwealth v. Triplett, 398 Mass. 561, 567 (1986), quoting Commonwealth v. Dickinson, 394 Mass. 702, 706 (1985). Third, a prosecutor may not ask a defendant a question for which the prosecutor cannot reasonably expect the defendant to provide an affirmative answer in order “to communicate an impression . . . by innuendo.” Commonwealth v. Fordham, 417 Mass. 10, 20-21 (1994). Fourth, it is generally “error for the prosecutor to cross-examine the defendant about his failure to contact police and tell them about his alleged self-defense before his arrest.” Commonwealth v. Gardner, 479 Mass. 764, 770 (2018). Finally, a prosecutor may not subject a defendant to questions that serve “merely to harass, annoy or humiliate.” Commonwealth v. Murphy, 57 Mass. App. Ct. 586, 589 (2003), quoting Commonwealth v. Johnson, 431 Mass. 535, 540 (2000). A prosecutor’s staying within such boundaries helps to ensure that a defendant receives a fair trial in which the jury dispassionately determine his or her guilt or innocence based on the objective facts. See Murphy, supra at 589-590.

Here, the prosecutor’s questions went beyond proper cross-examination in all of the ways described above. For example, the prosecutor asked the defendant to comment on the veracity of other witnesses and suggested that the defendant was tailoring his testimony to that of the other witnesses. In challenging the defendant’s testimony on direct that a chair had tipped over during the melee and caused a “thud,” the prosecutor asked, “So, you’re telling the truth and no one else is?” After the defendant answered, “Absolutely,” the prosecutor then asked, “And convenient that it made a thud as two other witnesses described last week; is it not?”

In addition, the prosecutor improperly posed numerous rhetorical questions that assumed a factual premise that the prosecutor knew the defendant denied.

The prosecutor had “badgered” the defendant and

A final improper question came at the beginning of the prosecutor’s recross-examination. At the conclusion of redirect examination, the defendant stated how “horrible” he felt about Boudreau’s death and how the date of the incident was “the wors[t] day of [his] life.” The prosecutor immediately asked, “How often did you rehearse that line, Mr. Fahey?”

Closing

The prosecutor also made numerous improper remarks during his closing argument. The over-all theme of the closing was that the defendant was a “cowardly bully” who had “victimize[d] a more vulnerable person[,] . . . a forty-two year old father of two.” In fact, during the course of his closing, the prosecutor labeled the defendant a “bully” thirteen times. “It is improper for a prosecutor to use insulting names designed to evoke an emotional, rather than a rational, response from jurors.”

The bully remark was exacerbated by showing contrasting photos of the defendant (booking) and a flattering photo of the deceased.

The prosecutor also crossed the line by excessively mocking the defendant’s defense. For example, he urged the jury to “cast aside this ridiculous, ridiculous notion that the defendant did not stomp on Mr. Boudreau’s head.” Although a prosecutor is free to marshal the evidence in the Commonwealth’s favor and to explain why the defendant’s arguments are unfounded, he should avoid mocking such arguments with the type  of excessive rhetoric employed here.

the court concluded that the conduct was not “subtle” or “isolated” and had prejudiced the trial. (Mike Frisch)