Saturday, August 25, 2012

Prosecutor Loses Conviction Because of Outrageous Conduct

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Right to an Impartial Jury
A person's right to a fair and impartial trial is protected by both the U.S. Constitution and the Pennsylvania Constitution.  Generally speaking, a criminal case is a battle between the prosecution and the defense, and the judge's role is to act as a referee to make sure that both sides play fair and in accordance with the rules.  The prosecutor's role in a trial is to prevent evidence that convinces a jury beyond a reasonable doubt that the defendant committed the alleged violation.  In some situations, the prosecutor does not play within the rules, despite repeated admonishments from the judge, and such behaviors, called prosecutorial misconduct, can result in the dismissal of charges.  


In Commonwealth v. Culver, the Superior Court recently considered a case in which the trial court found that the assistant district attorney had engaged in numerous instances of prosecutorial misconduct and that the misconduct had so tainted the trial that the defendant was entitled to a new trial.  In the case, the experienced criminal defense attorney raised timely objections to the prosecutor's behavior, and the judge even sustained the objections and admonished the prosecutor, but the prosecutor simply failed to listen.

Outrageous Behavior From the District Attorney
It was claimed that the assistant district attorney repeatedly invaded the personal space of the defense lawyer and the defendant while the prosecutor pointed his finger at them.  The appellate court characterized the actions as "menacing behavior."  
The assistant district attorney argued that he did not raise his voice, yell, or otherwise act inappropriately, and the prosecutor also claimed that the trial judge's description of the prosecutor's behavior was fabricated.  Amusingly, the Superior Court stated that the assistant district attorney's behavior at oral argument was "consistent with the account of his behavior at trial as described by the trial court," meaning that the prosecutor acted just as inappropriately before the appellate court as he had before the trial court.  The Superior Court also stated that his "volume and tone of his voice during oral argument were inappropriate for an appellate courtroom, as they would have been in any legal forum."  

The prosecutor also told the jury during his opening statement that he had spoken with an expert witness about a particular issue, but, during the trial, it came to light that the prosecutor had NOT in fact spoken with the witness as he had claimed.  In closing argument, the assistant district attorney again mischaracterized what he had done, which led to a defense objection that was sustained by the judge.  

The Superior Court also stated that the prosecutor had committed prosecutorial misconduct when he repeatedly told the jury that the defendant was a liar.  The assistant district attorney called the defendant “probably the most unreliable, unbelievable person that you are ever going to come across," and he insinuated that the defendant was a "compulsive or pathological liar."  The Court stated that "it was particularly egregious" to imply that the defendant was psychologically unable to be truthful. 

Importance of Having Experienced Defense Counsel
The assistant district attorney tried to claim that the Superior Court could not consider some of the instances of prosecutorial misconduct because the defense attorney did not object to every single instance.  Generally, if the defense attorney does not raise a timely objection to perceived errors, then the court will later hold that the issues were waived and thereby cannot be considered.  In this case, the Superior Court noted that the defense attorney had objected to many of the instances of misconduct, and the defense attorney had adequately preserved the issue.  The waiver doctrine shows why it is so important to have a defense attorney that is knowledgeable and experienced so that appropriate objections are raised to protect the rights of the client.  I have used hearsay objections in various Underage Drinking cases to keep such testimony from being admitted at a hearing and thereby protect the client.  I have also represented a client in a PCRA action in which the attorney had failed to adequately review the file and thereby failed to file a motion to dismiss charges when the prosecution's own evidence did not support some of the charges.  


Jason S. Dunkle has been a State College criminal defense lawyer since 2004.  His law office, JD Law, P.C., is located in downtown State College, within walking distance of the University Park Campus of Penn State University.  If you or someone you know has been charged with a DUI or other criminal offenese, contact JD Law at (814) 954-1094 and schedule a FREE CONSULTATION


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