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    The Lawletter Blog

    CRIMINAL LAW: Prosecutorial Misconduct in Closing Argument

    Posted by Suzanne L. Bailey on Wed, Mar 25, 2015 @ 11:03 AM

    The Lawletter Vol 40 No 1

    Suzanne Bailey, Senior Attorney, National Legal Research Group

         A recent en banc decision from the Supreme Court of Washington serves as a reminder of the bedrock upon which our criminal justice system stands, that is, that every defendant is entitled to a presumption of innocence, which is overcome only when the State proves guilt beyond a reasonable doubt as determined by an impartial jury based on evidence presented at a fair trial. In State v. Walker, 341 P.3d 976 (Wash. 2015) (en banc), the defendant was charged as an accomplice to aggravated first-degree premeditated murder, first-degree felony murder, first-degree assault, first-degree robbery, first-degree solicitation to commit robbery, and first-degree conspiracy to commit robbery in connection with an armored truck robbery at the Walmart where the defendant's live-in girlfriend was employed. The defendant was convicted of all charges, and he subsequently appealed, claiming, inter alia, that he had been denied a fair trial due to prosecutorial misconduct in closing argument.

         The prosecutor used a Power Point presentation made up of approximately 250 slides in closing argument. Over 100 of those slides had the heading "DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER." Two slides had the heading "DEFENDANT WALKER GUILTY OF ASSAULT IN THE FIRST DEGREE," and three had the heading "DEFENDANT WALKER GUILTY OF SOLICITATION TO COMMIT ROBBERY." Another slide superimposed the words "GUILTY BEYOND A REASONABLE DOUBT" over the defendant's booking photograph. The lettering was in bright red. Id. at 981, ¶ 12. Yet another slide proclaimed "Defendant Walker is GUILTY as an ACCOMPLICE to murder because he SPLURGED ON FRIVOLOUS THINGS." This was followed by a slide listing the items he had bought: two safes, a Wii and several games, and a $200 dinner at Red Lobster. The next slide was a photograph of the defendant and his family happily eating. Id. ¶ 13. Yet another slide was a photograph of money seized by police with the heading "MONEY IS MORE IMPORTANT THAN HUMAN LIFE," although there was no evidence that the defendant or anyone else had uttered those words. Id. at 982, ¶ 14.

         Near the end of the presentation was a slide depicting an in‑life photograph of the victim with a superimposed heading reading "DEFENDANT'S GREED AND CALLOUS DISREGARD FOR HUMAN LIFE" and text detailing the money stolen and its distribution among the participants, including the defendant. Immediately following that slide was one with the previously mentioned photograph of the defendant and his family eating dinner at the Red Lobster, with the caption "THIS IS HOW YOU MURDER AND ROB NIGGERS NEXT TIME IT WILL BE MORE MONEY." (This was apparently based on a comment the defendant had made to his son.) Following that slide came one with the defendant's booking photograph, with the caption "WE ARE GOING TO BEAT THIS," contrasted with the final image, which was an in‑life photograph of the victim. Id. at 982-83, ¶ 15. Defense counsel did not object to the Power Point presentation. Id. at 983, ¶ 16.

         The court emphasized that good trial advocacy encourages the creative use of multimedia resources, such as Power Point, and acknowledged that closing argument presents an opportunity for counsel to argue reasonable inferences from the evidence. "However, advocacy has its limits, and a prosecutor has the duty to subdue courtroom zeal, not to add to it, in order to ensure the defendant receives a fair trial." Id. at 984, ¶ 20. The court observed that "where [as in this case] a defendant raises [prosecutorial misconduct] for the first time on appeal, the defendant must" show not only that "the prosecutor's conduct was both improper and prejudicial in the context of the entire trial," but "that the misconduct was so flagrant and ill intentioned that an instruction would not have cured the prejudice," id. at 985, ¶ 22; the court had "no difficulty holding the prosecutor's conduct in this case was improper," id. ¶ 23.

         The issue at trial was the extent of the defendant's involvement in the crimes, and the State's Power Point presentation obfuscated the complicated facts presented to the jury. Id. ¶ 24. The volume of slides shown to the jury just before it was excused for deliberations was presumptively prejudicial. Rejecting the court of appeals' approach, which minimized the prejudicial impact due to the State's strong evidentiary case, the court explained that in evaluating prejudice, the focus must be on the misconduct and not on the properly admitted evidence. Id. at 985-86, ¶ 25. Likewise, the court rejected the lower appellate court's "suggestion that to be entitled to a fair trial, [the defendant] had the duty to come up with some plausible defense theory beyond the State's failure to meet its burden of proof and to produce evidence in support." Id. at 986, ¶ 26.

         In order to avoid such egregious violations of defendants' rights in the future, the court encouraged trial judges to preview slides before they are presented to the jury. "Providing the presiding judicial officer with a printed copy of the PowerPoint slides in advance is not burdensome and could curtail the necessity of a retrial due to misconduct." Id. ¶ 27.

    Topics: criminal, guilt beyond reasonable doubt, prosecutorial misconduct, presumption of innocence

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