Prosecutor misconduct cases

March 6, 2009
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For those current and aspiring prosecuting attorneys out there, read two of today’s Court of Appeals opinions to learn what not to do while at trial. The appellate court dealt with two cases of prosecutorial misconduct but found both were harmless enough not to warrant a reversal of convictions.

The cases are Artillius Washington v. State, out of Tippecanoe County, and Travis Johnson v. State , from St. Joseph County.

In Washington’s case, the Court of Appeals found the deputy prosecuting attorney’s remarks about defense counsel during closing to be clearly unprofessional and unacceptable, including the statement, “I could get just as improper and I get jury verdicts returned all the time on this very evidence. All the time. Guilty.”

The appellate court went on to chastise the attorney, saying upon reflection, the attorney should recognize that behavior has no place in the practice of law. But because Washington didn’t show how those comments had any likely effect on the jury that prejudiced him, he wasn’t denied a fair trial.

In Johnson’s case, the prosecutor committed misconduct by repeatedly referring to Johnson’s right to an attorney. The trial court even interrupted her closing arguments after she said “You need a lawyer when you know you’ve done something wrong.” As a result, the trial court admonished the jury saying the prosecutor’s comments can’t be considered in determining Johnson’s guilt. Because of the evidence of Johnson’s guilt and the admonishment, it was enough to make the error harmless, according to the Court of Appeals.

Any thoughts on these cases or any prosecutorial misconduct or missteps you’ve witnessed?
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  1. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  2. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  3. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  4. I totally agree with John Smith.

  5. An idea that would harm the public good which is protected by licensing. Might as well abolish doctor and health care professions licensing too. Ridiculous. Unrealistic. Would open the floodgates of mischief and abuse. Even veteranarians are licensed. How has deregulation served the public good in banking, for example? Enough ideology already!

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