Supreme Court
In some criminal trials, the argument basically becomes a “he said, she said” dispute. In the absence of hard evidence, the trial outcome largely (or completely) hinges on which side the jury believes. These cases often come down to whether the jurors trust the witness or victim more than they do the defendant, or vice-versa… or even the credibility of the defense attorney versus the prosecutor.
This issue of trust was front and center in a decision released by the Washington Supreme Court this week. State vs. Thorgerson focused on whether the actions of the prosecutor unfairly influenced jurors in their pursuit of which side they should trust – and whether these actions constituted prosecutorial misconduct.
The original case centered on a man who was convicted in 2008 of molesting his stepdaughter. The victim claimed that she was sexually abused on various occasions from age six or seven until she was in the sixth grade. She didn’t tell anyone about these allegations until she was 17, but she eventually gave a formal statement to law enforcement. Both the victim and the individuals who took the statements testified in court. The defendant denied that any such abuse took place, but he was eventually found guilty of four counts of molestation.
[It's a bit unsettling that a person can be convicted of a crime without any physical proof or eyewitness testimony. However, this absence of evidence is not uncommon in child molestation cases.]
After his conviction, the man appealed the verdict on the grounds that the prosecutor engaged in deliberate misconduct which influenced the jury’s decision. The defendant wanted the original verdict tossed out in favor of a new trial. The appeal focused on two allegations: that the prosecutor “vouched” for the accuracy of the victim’s testimony, and that he also impugned defense counsel directly.
During closing statements, the prosecutor claimed that the victim’s accusations were consistent when she told several people about the abuse (none of whom testified at trial, because their accounts constituted hearsay and were not allowed into evidence). The defense contended that this constituted “vouching” for the truthfulness of the victim’s allegations, which a prosecutor is not allowed to do. In other words, the appeal charged that the prosecutor basically told the jury, “the victim was consistent in her story when she told all these people – so even though these people didn’t testify, you should believe her.”
Secondly, the prosecutor also stated in closing arguments that the defense team was trying to confuse the jurors. The prosecutor even used the term “sleight of hand” when characterizing how the defense team laid out its case. The appeal claims that such an assessment was really a thinly-disguised personal attack on the defense lawyer, which is also forbidden.
In a 5-4 decision, the Supreme Court upheld the conviction and denied the appeal. Writing for the majority, Judge Barbara A. Madsen stated that while she did not condone the prosecutor’s actions, they didn’t rise to the level of prosecutorial misconduct – and therefore the verdict was not tainted. However, Judge Tom Chambers wrote in his dissent that the prosecutor was guilty of vouching and personally attacking the defense lawyer, and that the convicted man deserves a new trial.
There is clearly a difference of opinion on the high court on where the line should be drawn concerning the tactics of a prosecutor. All attorneys in a criminal case should do everything they can (within reason) to prevail in a case – including painting victims/defendants as trustworthy and challenging the opposing side’s arguments. But in the lawyers’ pursuit of a favorable trial outcome, how far is too far?