Quote:
Originally Posted by miked
I'm not a lawyer, nor do I play one on TV, but can a lawyer intentionally try and perform so ineptly in order to secure a retrial? Like some of the things that are being done and said seem like they are in order for the defendants to claim incompetent counsel. Commenting on the deceased victim having dirty toe nails? Asking for black pastors to be banned from the courtroom? Seems like an act to get the case retried or thrown out on appeal.
|
There's a lot of appellate caselaw about what lawyers are allowed to talk about at closing argument and what they're not. I think people would be surprised at the kind of stuff that is alleged to be prosecutorial misconduct on appeal. Basically any indirect reference to anything that isn't about the elements of the crime - the character of any of the witnesses, protecting the community, sending a message, any punishment the defendant might face, the lives of the victims, calling the victims "victims", the nature of the injuries (when that's not an element of the crime, like in a murder case), asking the jurors to deliver "justice", appealing to jurors' sense of duty and morality. A lot of one-off "errors" like that are deemed harmless by he appellate courts and the convictions stands, but there's some arbitrary level where they can up to a vacated conviction.
With the defense though, there's no check on it. It's certainly unethical. If the prosecutor objected, the judge should strike the comments and tell the jury not to consider it, but, they heard it anyway, and most attorneys don't like to object at closing argument because they think it makes them look too aggressive, and also only calls attention to the thing they want to object to. At some (again arbitrary) level something can be so bad that you ask for a mistrial, but, the standard for granting those is high, you don't want to clear the jury from the courtroom to make that argument and risk them holding that against you if you lose the motion, and, you don't want to start the whole trial proceeding over and push things down the road another year.
On the state side you always wonder about "poison pills" being left around the trial by defense counsel just in case of a conviction, but, it's really hard to win an ineffective assistance of trial counsel claim. You have to show prejudice, and a defendant really can't show that he would have been acquitted and not convicted if only his attorney didn't slander the victim during closing argument. IAC claims are good at tying up cases for years in state appeals and federal habeas, but they almost always lose in the end unless there's some specific objective measurable standard that's violated - like counsel didn't file a notice of appeal when the client asked them to, counsel gave objectively wrong information to the client about a possible sentence which led to them taking a plea deal or rejecting a plea deal, etc.
That stuff was pretty infuriating though. I think I read the people in the courtroom gasped at one of the comments. An objection by the prosecutor on top of that might of accentuated how inappropriate that was, and got that on the record, if just for historical context. I definitely believe attorneys should object more at closing argument. It just feels so rude to do in the moment. But on appeal, it's nice to have those court rulings on what was OK and what wasn't, and when its defense objecting at closing argument and preserving an alleged error, you can get more appellate rulings to give attorneys and trial judges guidance in the future, even if it doesn't result in a vacated conviction in that case.