Punishing the Prosecutor to Fit the Crime


A Harris County felony prosecutor, in closing argument, says (PDF on Scribd):

You-all heard some evidence, which I would have loved to brought you more people, but I couldn’t. This case is, does Harris County find what he did okay? And I still don’t know what he did, because he won’t even say it.

We all say dumb things in the  heat of trial. This particular dumb thing was a bush-league rookie mistake, stupid and costly (mistrial material, though this trial ended in a hung jury), a violation of two constitutions and a mandatory statute, but not the worst ever. I once had a felony prosecutor refer three times to my client’s silence at trial:

“So in this case, I could get up here and argue, ‘Well, we didn’t hear from the defendant. So we don’t know what he was thinking.’” (Objection sustained [?]).

“We didn’t get to hear anything from the defendant or get into his mind either from what anybody testified about or anything. So we take circumstances and –” (Objection sustained. Jury instructed to disregard. Mistrial denied.)

“When we go into knowledge or intent, remember when we talked during jury selection about how do you prove knowledge or intent without being able to get into that person’s mind or have them tell you what knowledge, what they knew or what they intended to do; and I gave you the example of the shopping cart. And what that example –” (Objection overruled.)

We got a new trial in that case and got it reduced to a misdemeanor, and five years later the prosecutor is prosecuting class C misdemeanors in Justice of the Peace court. (Not that his mistake in my trial was a reason—much less the only reason—for that particular career development.)

Jackie Carpenter, who was there for the trial, guest-blogged on Eric Davis’s Sustained! blog on Tuesday about the incident. Some of the anonymous commenters (moving smoothly, with about the level of arrogant ignorance you expect from anonymous commenters, from “the objection was not sustained, so you shouldn’t have named him” to “okay, the objection was sustained but it wasn’t deliberate”) are apparently upset that Jackie would make a big deal of the prosecutor breaking the law.

Jackie didn’t overreact at all. If there is a new trial in this case, it’s the client who will suffer because of it. This is not something that the defense lawyers should have allowed to be swept under the rug. As Jackie wrote in a comment,

Other prosecutors can be in the heat of battle and not make this error, even Rob Freyer, so why is Ryan the exception?

Jackie’s blog post was, in my opinion, a bit on the gentle side; I wouldn’t have written the blog post and left the prosecutor’s name out (when a prosecutor did it to my client before I had a blog I made sure there wasn’t anyone in the criminal defense bar who didn’t know about it).

Today Eric Davis responds to those who think that making a stink about the prosecutor’s violation of the law was “throwing him under the bus”:

Harris County District Attorney Pat Lykos promised that she would hold prosecutors accountable for ethical violations. But progress has been slow. To date, there has been very little real systemic change. The only real barrier blocking the prosecutor from mowing down the criminal defendant and his garden of constitutional rights is the defense lawyer. And if the defense lawyer’s cultivation and protection of the seeds of his client’s life require him to oppose, expose and uproot unethical prosecutors; then let spring time come.

Eric is, of course, entirely correct. Those who are prosecuting others for breaking the law are the last people who should expect, in the name of some sort of professional courtesy, to be absolved of their violations of the law.

So what should happen to the prosecutor? Exile to JP Court? A public flogging? Suspension? Demotion? Being called “negligent and incompetent” by the boss? Being compelled to reimburse the accused for the cost of his defense? I’ve heard rumors of the punishment he is receiving ranging from being chewed out by the boss, to being forced to write a memo justifying his actions.

Such a memo would be an exercise in futility. There is no justification for something the Court of Criminal Appeals has said “no reasonably competent prosecutor” would do, Thompson v. State, 651 S.W.2d 785, 786 n. 3 (Tex. Crim. App. 1983) (emphasis in original).

A less fruitless exercise than justification would be apology. Being compelled to write a letter of apology to the accused (who, after all, was the one most affected by the prosecutor’s misconduct) would serve the punitive goals of specific and general deterrence and rehabilitation. It would also serve as retribution, but only in proportion to the ill-will borne toward the accused by the prosecutor.

That is, if the prosecutor bears no ill-will toward the accused and the violation really was an innocent slip, it shouldn’t hurt the prosecutor to apologize for it; if, on the other hand, the prosecutor really wants to get this guy, it is more likely that the violation was deliberate, and the apology will be proportionally more painful to the prosecutor.


0 responses to “Punishing the Prosecutor to Fit the Crime”

  1. So does this mean, pursuant to Thompson, cited above, that Ryan is not a “reasonably prudent prosecutor” under the circumstances (commenting on the defendant’s failure to testify)?

  2. I’m reminded of the book, “Ordinary Injustice.” NOT naming names is the default rule. Yet the default rule works against any proper system of criminal justice. Yet anyone who starts naming names isn’t praised for exposing unethical conduct; but instead is attacked for violating some norm – a norm, which, again, does not bring us to a more just criminal system. Indeed, the norm does the opposite: It protects those who violate the law.

  3. This event illustrates why criminal conviction in most cases requires a culpable mental state. On the one hand, as a prosecutor, I can’t recall ever having made such a patently illegal argument, but I can’t say for sure it’s never happened “in the heat of the moment.” Such an unthinking violation would be committed “with criminal negligence” or “recklessly.” On the other hand, we’ve all pushed the envelope in trial practice, and we’ve all been in the courtroom with opposing counsel who push it right up to a sustained objection. Under those circumstances, the violation was committed “intentionally and/or knowingly.”

    I think, based on the evidence presented, it’s difficult to tell, Mark, what the punishment should be. That there should be SOME is readily apparent. However, the transcript portion provided is insufficient. Did the defense really attempt to present a self-defense claim in closing without the appropriate basis? Was there a jury instruction — or lack thereof — regarding self-defense and was the defense instructed that it could not argue self-defense and did it anyway? If so, the snippet may have been a poorly-phrased — and still wrong — attempt on the prosecutor’s part to ACTUALLY argue that the defendant was not legally entitled to a self-defense claim based on his failure to meet certain burdens for that defense.

    I can say I’m disappointed that the prosecutor apparently didn’t step back after the objection and emphatically correct himself in front of the jury by reminding them of the jury instructions: the defendant has a RIGHT not to testify, that the State has the BURDEN, and that he doesn’t want and didn’t mean to imply that he wanted a verdict based on anything that violates the defendant’s rights. THAT would have been evidence that his slip was negligent or reckless — a prosecutor should take every action available to correct such an error, including throwing his own case under the bus if necessary.

    In and of itself, a negligent or reckless error merits a demotion, since it costs both the defendant AND the office. (I’m not a fan of forced apologies, but if the prosecutor is any kind of person, he should offer one on his own.) A knowing and/or intentional error of this type is an ethical violation, merits a bar complaint, and he should be removed from office. But more evidence is necessary — is there any chance that perhaps someone would be willing to post the entire closing transcript, if they already ordered it?

  4. What? Defense counsel always assume the resources of the State are limitless. I prefer punishments for public servants that communicate to them that if they cannot be more careful with what I assure you are actually the limited resources provided by the taxpayers, they themselves merit less of those resources in pay.

    Or maybe you think that’s too lenient, and we should demand a public flogging? *tongue firmly in cheek*

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