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Prosecutorial misconduct

If you've got a criminal case where you're thinking of making an argument on prosecutorial misconduct, you'll want to take a look at the 8th District's decision last week in State v. JacksonIt's probably the most pro-defense decision on that issue that I've ever seen.

The facts in Jackson were nasty:  Jackson was charged with 26 counts of rape, gross sexual imposition, and kidnapping against his two granddaughters.  The two -- T and M, in the court's opinion -- were the prime witnesses against him, and testified to a wide range of predatory misconduct that he'd committed when they'd reached puberty.  The incidents came to light when T was 16 and living with other relatives; one of the relatives found a letter she'd written about the incidents, confronted her with it, and got her to talk about it.  M broke her silence a month later.

The appellate panel -- Judges Rocco, Sweeney, and Boyle -- reversed Jackson's convictions on all counts, finding

The record in this case demonstrates the prosecutor failed to limit himself to appropriate closing argument by: 1) stating facts that were not in evidence; 2) extensively giving his personal opinions on the credibility of the witnesses; 3) denigrating the defense; and, 4) appealing on behalf of the victims to the sympathy of the jurors.

To be perfectly candid, none of the comments appear nearly as egregious as those commonly held to constitute prosecutorial misconduct; indeed, they aren't as egregious as some of those held not to constitute prosecutorial misconduct.  The basis for the conclusion that the prosecutor "stated facts not in evidence," could largely be characterized as simple mistakes:  for example, the prosecutor confused which of the two girls had come forward first.  Another was the statement that T had told what happened to her "when she was finally in a safe place," the court finding that was contradicted by the fact that T had run away from other homes after that.  I'm not sure that's even a contradiction, and it seems to fall well short of the situation in State v. Liberatore, say, where the court reversed because the prosecutor had spent a sizable amount of time arguing that a key witness hadn't testified because the defendant had threatened him, without any factual support for that claim.

The finding that the prosecutor impermissibly vouched for the credibility of his witnesses seems to be a stretch, too:

The prosecutor further asserted that the "only" people "who were there [during the incidents] came in and told 'ya that [Jackson] raped them, that he fondled them, that he kissed their breasts." Furthermore, "not once did they switch up or falter or change their story. The truth does not change." The prosecutor thereby asserted his witnesses were truthful.

Well, if that's what now constitutes vouching for the credibility of one's witnesses, the times, they are a'changin'.  In fact, the case law pretty consistently holds that the prosecutor crosses the line only if he personally expresses his belief that the witnesses are telling the truth. 

I'm not sure what to make of Jackson.  One of the problems with prosecutorial misconduct cases in general is that they're very fact-specific; given the limited precedential value in that type of situation, Jackson's may be further eroded by the fact that it's such an outlier.  Frankly, my guess is that the gang across the street is getting a little ticked at some of the cases they're seeing and decided to send a message, even though the prosecutor in this case might not have deserved it.

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