Prosecutorial Misconduct – the criminal defense attorneys best and not often recognized friend. Many of us defense attorneys wander the halls of justice from trial to trial watching judges and prosecutors send people away for years at a time in what seems like a well rehearsed dance. Cynical? Yes. The constant defeat of defense arguments can be defeating but we march on in pursuit of justice inspired by cases like State v. Walker that just arrived from the second Division of the Court of Appeals.
The Court found several grounds to overturn the murder conviction:
1. A fill in the blank argument by the prosecutor was prosecutorial misconduct as it shifted the burden to the defense that they must prove a reasonable doubt exists.
2. Comparison to every day decisions (here leaving kids with baby sitter and having surgery) when describing the reasonable doubt standard was prosecutorial misconduct because it minimized the importance of the decision and of the beyond a reasonable doubt standard
3. The prosecutor committed misconduct in arguing to the jury that they must declare the truth:
The goal of closing argument is to point you toward a just verdict. You’ll note that’s not just a verdict, but it is a just verdict. The word “verdict” comes from a Latin word, “veredictum.” Veredictum means to declare the truth. And so by your verdict in this case, you folks, the 12 of you who will deliberate, will decide the truth of what happened to Mario Moss, to [Tavarrus] Moss, and Rooney Key on July 30th of 2006.
This was improper because it suggests that the job of the jury is to declare the truth. The job of the jury is to decide if the prosecutor has proven the case beyond a reasonable doubt and not to decide the truth or solve the case.
Rule of Walker – Prosecutor misconduct when file in the blank for reasonable doubt argued, comparison to every day decisions are the same as reasonable doubt standard, jury’s job is to solve the case and declare the truth.
State v. Aquarius Tyree Walker, Court of Appeals of the State of Washington, Division II, No. 39420 -1-II, November 8, 2011.