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Bell/Gaerte: 3 things to know about ethical advocacy in closing argument

James J. Bell , K. Michael Gaerte
July 30, 2014
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Bell Gaerte 3 thingsRecently, several published decisions have found attorneys to have engaged in improper advocacy. Most of these decisions have been criminal cases in which prosecutors were found to have engaged in a series of impermissible arguments. In addition, there was one recent disciplinary decision that found an ethical violation when the attorney made unsupported statements in his closing argument. Here are three things to know about ethical advocacy in closing argument.

1. Rule of thumb: Stick to the record.

If you are in the heat of trial and can’t remember anything else from this article, just remember that if you only argue the facts that were entered into evidence, everything else should be smooth sailing. Rule 3.4(e) of the Indiana Rules of Professional Conduct states that “A lawyer shall not . . . in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.” Furthermore, in a criminal case, “the prosecutor is required to confine her closing argument to comments based upon the evidence presented in the record.” Brummett v. State, 10 N.E.3d 78, 9 (Ind. Ct. App. 2014). Stated in a slightly different way, “[i]t is misconduct for a prosecutor to request the jury to convict a defendant for any reason other than his guilt.” Ryan v. State, 9 N.E.3d 663, 16 (Ind. 2014).

Applying these standards to recent cases, the court has found the following to be improper:

• Characterizing defense counsel’s argument as “how guilty people walk” or a “trick.” Ryan, 9 N.E.3d at 10.

• Requesting that the jury convict the defendant as part of a “bigger picture” and to send a message that stops other perpetrators of sexual misconduct like teachers, coaches or pastors. Id. at16.

• Suggesting that the defendant and defense counsel conspired to fabricate its defense. Brummett, 10 N.E.3d at 11.

2. Improper advocacy can be deemed unethical.

In Matter of M.A., 2014 Ind. LEXIS 507(Ind. 2014), the respondent was found to have violated Rule 3.4(e) of the Indiana Rules of Professional Conduct when he “made a number of inappropriate remarks during closing argument, including telling the jury that this would be a ‘perfect case for punitive damages’” even though the claim for punitive damages had been withdrawn. Id. at 4. In addition, the respondent improperly alluded to “facts that were not supported by admissible evidence, assert[ed] personal knowledge of facts in issue, and stat[ed] his personal opinion as to the justness of his clients’ cause and the credibility of a witness.” Id. at 4-5. The respondent was found in violation of other Rules of Professional Conduct and was sanctioned with a 60-day suspension.

In addition, some of the criminal cases cited above analyzed the Rules of Professional Conduct in evaluating whether the lawyer’s advocacy had been appropriate. For example, in Ryan, the Court of Appeals, quoting the Preamble to the Indiana Rules of Professional Conduct, held that a prosecutor’s improper comments regarding defense counsel were “inconsistent with the requirement that lawyers ‘demonstrate respect for the legal system and for those who serve it, including . . . other lawyers.” See Preamble [5], Ind. Professional Conduct Rules; Ryan, 9 N.E.3d at 10. In addition, the prosecutor’s comment that the witnesses “do not lie about the Defendant,” constituted improper commentary on “the justness of a cause” and the “credibility of a witness” in violation of Rule 3.4(e). Brummett, 10 N.E.3d at 15.

3. Opposing counsel can help stop the improper advocacy.

Whether the attorney is in a criminal or a civil case, the attorney’s opposing counsel has a role to play in preventing misconduct. For example, opposing counsel should know that he or she can open the door to otherwise improper arguments. In Neville v. State, 976 N.E.2d 1252, 1259-60 (Ind. Ct. App. 2012), a prosecutor made a comment in voir dire that could have been interpreted to suggest that a good judge and good defense attorney meant that the jury should not be concerned about a wrongful conviction.

While the court seemed “troubled” by this comment, it also noted that “[p]rosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor’s response would otherwise be objectionable.” Id. at 1260 quoting Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006). Because the prosecutor was responding to defense counsel’s questioning about wrongful convictions, the court deemed that the comments did not rise to the level of fundamental error. Id.

Finally, opposing counsel obviously needs to object to improper comments. While the conviction in Brummett was reversed, the conviction in Ryan was not. Both cases involved similar arguments from the prosecutor. However, because defense counsel did not object, the judge did not stop the improper arguments at either trial and the cases were analyzed under a fundamental error analysis. While it will never be known what would have happened had a timely objection been made, the chances of a fair trial would have increased.•

__________

James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.

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  1. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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