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3 things to know about the boundaries of closing arguments

August 28, 2013
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Bell Gaerte 3 thingsTrial lawyers often sit silently at counsel table during closing argument. Criminal defense attorneys, in particular, fear they will alienate the jury by objecting during a critical stage of the trial or they fear their objection will highlight prejudicial evidence. Some criminal defense lawyers have simply figured that most comments are permissible anyway and, therefore, there is no real basis for an objection. After all, an appellate court once found no abuse of discretion after a prosecutor read a poem about a cockroach and analogized the cockroach to the defendant Bowles v. State, 737 N.E.2d 1150, 1154 (Ind. 2000).

However, the recent case of Ryan v. State reminded criminal defense lawyers that a prosecutor’s closing argument has firm boundaries. Ryan v. State, No. 49A02-1211-CR-932, 2013 Ind. App. LEXIS 364 (Ind. Ct. App. July 31, 2013). Ryan was on trial for two counts of sexual misconduct with a minor, both Class C felonies. The facts center on a teacher’s alleged inappropriate relationship with his 14-year-old student. During closing argument, the prosecutor suggested that Ryan went to trial solely because he wanted to “get away” with his crime, that the defense attorney’s argument was an attempt to trick the jury, that the jury needed to send a message with their verdict, and that the alleged victim was telling the truth in her testimony. Despite the lack of an objection from trial counsel, the Court of Appeals ruled that the cumulative effect of the prosecutor’s argument rose to the level of fundamental error, reversed Ryan’s convictions and remanded his case for a new trial.

Here are three things a criminal lawyer should know about the limits of a prosecutor’s closing argument:

1. A prosecutor’s comments on the accused’s constitutional rights cross a boundary.

Ryan’s prosecutor argued that “I want to be really clear, we are here because everyone has the right to have a jury trial. We’re not here because he didn’t do it, we’re here because he wants to get away with it.” The appellate court noted that both the Sixth Amendment to the United States Constitution as well as Article 1, Section 13 of Indiana’s Constitution guarantee a defendant’s right to a jury trial and that this is a “…fundamental linchpin of our system of justice.” Id. at 8; citing Kellems v. State, 849 N.E.2d 1110, 1112 (Ind. 2006). A prosecutor’s comment on that right makes its assertion costly, and also impermissibly implies that only guilty people exercise the jury trial right. Id. at 10. The appellate court found that such comments were not inferences from the evidence, but rather rose to the level of prosecutorial misconduct. Id. at 12.

2. A prosecutor’s request for the jury to send a message crosses a boundary.

In Ryan, the prosecutor argued that “…we keep hearing about this happening, whether it’s a teacher, or a coach, or a pastor, whoever. And we all want to be really angry and post online and have strong opinions about it. And we never think that we’ll be the ones that are here that get to stop it. And you actually do get to stop it … you are in an incredible position to stop it and to send the message that we’re not going to allow people to do this.”

The appellate court was careful to explain that a prosecutor could permissibly argue that “justice was served in this particular case.” Id. at 16. However, given Ryan’s prosecutor’s emphasis that the jury shouldn’t allow “people” to do this, the exhortation could be read to find Ryan guilty in order to stop others from committing sexual misconduct. Id. at 17. As a result, the comments were deemed improper and constituted misconduct.

3. You need to find a way to say “objection” during closing argument.

This lesson is an obvious one, but a reminder never hurts. Because Ryan failed to object to the prosecutor’s arguments, he was only able to prevail on appeal by utilizing the fundamental error doctrine. Fundamental error is “an extremely narrow exception” and a reversal on the grounds of fundamental error is rare. In order to preserve error for appellate review, a defendant usually must request the jury be admonished and if the admonishment is insufficient, move for a mistrial. Id. at 7-8.

In most instances, closing argument is the last time the jury hears from the attorneys prior to deliberations. And, of course, the prosecutor gets the last word. Ryan demonstrates that a defense lawyer can’t simply let improper arguments go to the jury. If counsel is uncomfortable objecting in front of the jury, he or she should consider approaching the bench during closing argument and making a record before the judge. Regardless of the attorney’s trial strategy, the attorney must find a way to preserve the record.•

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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 via email at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.
 

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  1. This guy sounds like the classic molester/manipulator.

  2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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