Message Sent; Conviction Reversed

The Wyoming Supreme Court has reversed a criminal conviction

John Wallace McGinn was found guilty by a jury of domestic battery and possession of a weapon with intent to threaten. Mr. McGinn testified at trial, and, over the objections of defense counsel, the prosecutor asked him a series of questions in which she repeated statements made by his daughter and asked, “was she lying?” Prior to trial, at a hearing on the State’s Rule 404(b) notice, the district court ruled that evidence regarding prior discharge of a gun would be admissible. Mr. McGinn appeals, contending the “was she lying” questions constitute prosecutorial misconduct, and that the trial court abused its discretion when it allowed the prior discharge evidence. We reverse.

The state conceded error but contended it was harmless.

Not

the misconduct was certainly severe and pervasive. The prosecutor asked some version of the “was she lying” question more than twenty times on crossexamination, and again referred to it in her closing argument. We have found far fewer of those questions to be objectionable in our prior cases.

The court found misconduct and held with respect to prejudice

If we held that misconduct could be cleansed by the trial court’s erroneous approval, we would be sending the message that misconduct is acceptable if the prosecutor can get away with it. That would be the wrong message. The prosecutor’s duty is to seek justice and to win trials only when justice is served. Shifting the burden of demonstrating lack of prejudice to the State in cases of prosecutorial misconduct where appropriate objection has been made is consistent with that duty.

(Mike Frisch)