Beyond The Established Limits

The Massachusetts Board of Bar Overseers web page has a summary of a public reprimand of a prosecutor 

The respondent represented the Commonwealth as assistant district attorney at the trial of a first-degree murder case pending in Superior Court. The respondent’s prosecution theory alleged that the defendant had punched the victim in the face without provocation, then stomped on the victim’s head when he fell to the ground. The crux of the defense was, in essence, that the defendant had been acting in self-defense when he made a split-second decision to punch the victim out of fear that the victim was about to attack him.

On direct examination, the defendant admitted that he punched the victim but denied that he stomped on his head. On cross-examination, the respondent asked the defendant to answer questions that went beyond the established limits of proper cross-examination by, inter alia, posing numerous rhetorical questions, some of which constituted badgering of the defendant.

Furthermore, the respondent made numerous improper remarks during his closing argument that were inflammatory and constituted an improper appeal for sympathy from the jury. For example, the respondent repeatedly called the defendant a “bully,” and excessively mocked the defense as, inter alia, “ridiculous.”

The jury convicted the defendant of murder in the second degree, and he received a sentence of life in prison. The Massachusetts Appeals Court overturned the defendant’s conviction and ordered a new trial solely based upon the impropriety of the respondent’s improper cross examination and inflammatory closing argument. Specifically, the Court found the respondent’s errors on cross-examination and in the respondent’s closing argument were pervasive and, in some instances, egregious. The Court concluded that the errors created a substantial risk of a miscarriage of justice and that the defendant was, therefore, entitled to a new trial with respect to the charge of murder in the second degree.

The respondent’s improper conduct during his cross-examination of the criminal defendant and in his closing argument during the murder trial violated Mass. R. Prof. C. 8.4(d).

(Mike Frisch)