The Indiana Court of Appeals wrote one (1) and the Indiana Supreme Court wrote two (2) criminal decisions for publication this week: (See also, Indiana Lawyer articles here: Justices Question Prosecutor’s Tactics, but Decline to Award New Trial, Prosecutor’s ‘Continual Misconduct’ Warrants New Molestation Trial, Prosecutor’s Lack of Objection Allows Judge to Modify Sentence)
Bruce Ryan v. State of Indiana, 49S02-1311-CR-734 (Ind. 2014).
In this recent case issued by the Indiana Supreme Court, justices considered four (4) allegations of prosecutorial misconduct, only finding that the prosecutor had committed misconduct when he stated,
“[Y]ou wonder at night what you can say to a jury to get them to get the bigger picture here. And no case is easy for your guys, I get that. No one want[s] to judge someone else or somebody else’s actions. But we keep hearing about this happening, whether it’s a teacher, or a coach, or a pastor, or 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. And as much as I know you probably did not want to be here on Monday morning, I would submit to you that you are in an incredible position to stop it and send the message that we’re not going to allow people to do this.”
The Indiana Supreme Court did find that this comment amounted to “prosecutorial misconduct.” However, the court refused to find that it amounted to reversible error for two (2) reasons. First, the criminal defense attorney failed to object at the time the statement was made, which forces a criminal defendant on appeal to demonstrate “fundamental error“. “Fundamental error” is an extremely difficult burden for criminal defendants to meet, and very few cases are reversed once this standard has been triggered. Secondly, the Indiana Supreme Court reasoned that because the Prosecutor later in his closing argument invoked the jury to convict based on the evidence presented, that it mitigated the potential harm of his earlier comments.
Brandon Brummett v. State of Indiana, 49A02-1304-CR-378 (Ind. App. 2014)
In this case, the Indiana Court of Appeals found that the Prosecutor committed prosecutorial misconduct on three (3) occasions. First, the Prosecutor disparaged the criminal defense attorney on several occasions, implying that he “allowed guilty men to go free”, and employed “tricks”. Second, the Indiana Court of Appeals found that the Prosecutor committed prosecutorial misconduct when he “vouched” for the state’s witnesses. Improper “vouching” is when a party, here the State of Indiana, implies personal knowledge of a witness telling the truth. Third, the Indiana Court of Appeals found that the Prosecutor committed prosecutorial misconduct when, during cross examination of the Criminal Defendant, asked inflammatory questions and argued with the Criminal Defendant on the witness stand.
The Court here determined that in the three (3) instances of prosecutorial misconduct, they had the “cumulative effect” of placing the Criminal Defendant in “grave peril” and “making a fair trial impossible.”
State of Indiana v. Tammy Sue Harper, 79S02-1405-CR-334 (Ind. 2014).
In this case, the Prosecutor was given an opportunity to object to a sentence modification at the modification hearing, but failed to exercise its right to do so within a reasonable time. The Trial Court expressed its intent to grant the modification without the State’s objection “in the near future” or “within a week or so”, and granted the Criminal Defendant’s request approximately five (5) weeks after the modification hearing was held, with no objection by the State. The Criminal Defendant was therefore released from incarceration into a rehabilitative program.
What deeply concerns me here is that the statement made in the first case did not constitute “fundamental error“. Asking a jury to convict a person based on the heinous nature of the allegations alleged against the defendant is clearly intended to invite the jury to convict for reasons other than the guilt of the defendant, and without a doubt puts the defendant in great peril and makes a fair trial impossible. Our criminal system is built upon John Adams’ sacred democratic principle:
“‘Tis better that a hundred guilty men go free, than a single innocent man be imprisoned.”
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