The Brady Bunch

The Washington State Court of Appeals Division III reversed an identity theft and forgery conviction

Although we determine that the evidence is sufficient to support the convictions, we hold that it is improper vouching for a prosecutor to suggest that law enforcement witnesses would not risk their careers by testifying untruthfully. Additionally, while it is not per se improper for a prosecutor to suggest negative inferences from a missing witness, in this case, the record does not establish that the missing witness doctrine applied and the comments improperly shifted the burden of producing evidence to Stotts.

We further conclude that defense counsel’s failure to object to the improper arguments was deficient and not part of a legitimate trial strategy because witness credibility was a material part of the State’s case. We conclude that had defense counsel objected, there is a reasonable probability that the outcome of the trial would have been different. Because we determine that defense counsel was ineffective, we do not reach the prejudice prong of Stotts’ prosecutorial misconduct argument. We therefore reverse Stotts’ convictions and remand for further proceedings.

The Brady list

The State contends that the prosecutor’s comments merely pointed out the bias and lack of bias for each witness. We disagree. The prosecutor elicited testimony that officers who were “deemed untrustworthy” were placed on a Brady list that effectively ended their career and then circled back to this evidence in closing by suggesting that this officer would not destroy his career by being untrustworthy. The prosecutor’s reference to the Brady list as an external lie detector suggested to the jury that some unknown government entity monitors officers for their truthfulness. If this unknown entity determines that an officer is untruthful based on unknown factors, then the officer loses their job and would not be testifying at trial.

In reality, the prosecutor’s office determines which officers are placed on the Brady list. Mary Ellen Reimund, Are Brady Lists (aka Liar’s Lists) the Scarlet Letter for Law Enforcement Officers? A Need for Expansion and Uniformity, 3 INT’L J. HUMANS. & SOC. SCI. 1 (Sept. 2013). So arguing that the Brady list is evidence of or motivation for truthfulness is another way of saying that the prosecutor’s office has vetted the witness and vouches for the officer’s credibility. If the jury knows that the prosecutor maintains the Brady list, then it is direct evidence of vouching. If they are unaware of this, then the argument suggests that evidence outside the record is monitoring the credibility of witnesses. Either way, it constitutes improper vouching. For this reason, “[i]t is . . .impermissible for a prosecutor to ask a jury to consider whether law enforcement agents would risk their careers to commit perjury.” 6 WAYNE R. LAFAVE, ET AL., Criminal Procedure § 24.7(e) at 602 & n.67 (4th ed. 2015).

Missing witness

Because the State failed to show that the missing witness doctrine applied, it was improper to raise it for the first time in closing argument. It is one thing to point out that there is no evidence to corroborate a defendant’s testimony and another to suggest adverse inferences from a missing witness without first satisfying the limitations on using this doctrine. Here, by arguing that the jury could make an adverse inference from the failure of Josh to come forward and corroborate Stotts’ testimony when it is not clear that this witness was available to testify, improperly shifts the burden of proof. Accordingly, we determine that the argument regarding the lack of testimony from Josh constituted prosecutorial misconduct.

Ineffective assistance

In searching the record for a conceivable trial strategy, we note that defense counsel failed to make a single objection throughout the entire trial. See generally Report of Proceedings. This despite numerous instances of seemingly objectionable testimony. For example, one officer repeatedly testified that Stotts was lying during his conversation with police. The same officer testified about hearsay statements made by the victims. The officer also testified that he contacted a potential defense witness who did not corroborate Stotts’ version of events and refused to testify at trial. One of the victims testified about a hearsay conversation he had with his son (who did not testify). And during cross-examination, the prosecutor asked Stotts if the officers’ testimony was false…

In both instances of prosecutorial misconduct, Stotts demonstrates that defense counsel was deficient and that this deficiency prejudiced him. Accordingly, we determine that Stotts was deprived of his right to effective assistance of counsel.

(Mike Frisch)