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State v. Monday and Prosecutorial Misconduct

By on Jun 17, 2011 | 6 comments

Last week the Washington Supreme Court came down with an opinion that reverberated up and down the criminal bar. In State v. Monday, our state Supreme Court, in an 8-1 decision, reversed a murder conviction because of prosecutorial misconduct. It’s a fascinating opinion and well worth a read in its entirety. As one colleague said, reading it “…makes you proud to be part of the American judicial system.”

From reading the coverage of the case, it looks like a lot of people misunderstand the takeaway from the opinion, and in general the role of the prosecutor and courts. Today’s post will explain those, and explain why the opinion was such a positive one for the concept of a fair trial.

To explore the concept of a fair trial, we must start with the players. In this case the prosecutor and appropriate prosecutor behavior. Prosecutors represent a government, either city, state, or federals, in their prosecution of those they have deemed to have broken the law. In this state a criminal complaint, the formal document charging someone, will state the law was violated “against the peace and dignity of Washington.” The prosecutor’s job is nominally to restore that peace and dignity.

As government employees generally, and prosecutors specifically, the State wields enormous power in its effort to convict someone of a crime. The resources of a city or county, not to mention the entirety of a police force, are at their disposal. In addition, prosecutors often receive certain inherent credibility from the general populace, a credibility which is quite relevant in jury trials.

To stymie that enormous power somewhat, the rules of professional conduct (ethical rules for all attorneys) have a special section for prosecutors. Titled aptly enough “Special Responsibilities of a Prosecutor” the rule lists particular obligations of attorneys who hold that office. I spoke with a prosecutor once who was incredulous in the idea that prosecutors have special obligations, but indeed they do. The rule generally requires prosecutors to be forthcoming with evidence and not merely seek convictions, but to seek a fair trial based on evidence.

The purpose of a trial is a fact-finding enterprise to resolve a dispute. Did the plaintiff copyright the song, or did they miss the deadline? Did the defendant really have a .40 blood alcohol limit, or was the machine malfunctioning? The attorneys gather evidence and present it and spin it in order to achieve the result their clients are looking for. It’s an adversarial system, sometimes aggressively so, but ultimately the lawyers are officers of the court. Respect for the system is paramount.

It’s a very rare attorney who will do the really nasty stuff like destroy evidence or counsel a witness to perjure themselves. There’s certainly no showing that the prosecutor in Monday did any of those things. What’s more common is an attorney that so zealously believes in their cause that they’ll push the envelope. Make objectionable comments on the hope that their opponent is asleep, or make appeals to prejudice, or anything else that gets a jury to make a finding based on emotion rather than evidence. And that’s a real danger.

Fundamentally, the rules of evidence are designed with jury perspectives in mind. They’re written for the public good, to ensure a fair trial. For example, ER 408 prevents the admission of offers to settle by the parties, since the drafters assumed offers to settle would be taken as admissions of culpability. ER 404 prevents admission of prior bad acts of a defendant, so that the jury considers the evidence in this case rather than painting the defendant as a “bad seed.” And so on.

From a broader perspective, these rules are for society’s benefit. Lawyers have to navigate these rules constantly; the issue of admissibility of evidence is a constant one. But when these rules are enforced and a jury makes a finding, we can assume 1) that the defendant got a fair trial, and 2) that the verdict, guilty or otherwise, was based on facts rather than prejudice. That confidence in our system really does benefit everyone.

The Seattle Times did an article about the ruling here. In my view, this article badly mischaracterizes the opinion of the court. The article talks about “racist arguments” and “prosecutorial misconduct” and putting other things “in quotes” so as to look like it was the Justice’s imagination the paper was reporting on, rather than what “actually happened.” (I’m not kidding. The author uses plenty of what are called scare quotes. The majority’s comments get lots of these quotes, while the dissent was synopsized to report the murder was proven beyond a reasonable doubt.) Some of the reader comments on the article are, not surprising, vile. But worse, they badly misunderstand the thrust of the opinion.

That thrust was there was a fundamental issue with the trial and the prosecutor’s actions. And the record showed the prosecutor was looking for a conviction for reasons outside the evidence. Here’s how the opinion broke down:

First the facts of the case were laid out. They’re not particularly relevant to the opinion (except to the dissent) but in essence after a verbal exchange, Kevin Monday was caught on camera shooting someone. There’s no real doubt he was the shooter, although the court noted a possibility of a defense, perhaps an affirmative defense. In any event, the opinion made a major point of the prosecutor needing to resort to inappropriate tactics when the State almost literally had the smoking gun.

The second part talked about witness credibility. Witness statements are evidence, and how much weight to give those statements rests solely with the jury. A common tactic by attorneys is to discredit the testimony of a witness by asking about their lack of perception (“you wear glasses, right?”), bias (you’re paid to testify here, right?”), etc. You ask questions designed to illicit reasons why their testimony is suspect. However, you do not personally vouch for the credibility or lack of credibility of a witness. It’s pure misconduct to say “the police told the truth and the defendant is lying.” Those kinds of conclusions are strictly the job of the jury.

The prosecutor here spent a lot of time talking about lying witnesses, and apparently did so based on a code shared by all black people(?!). That in itself is offensive and apparently pissed off the justices something fierce. But what I personally found most offensive was the prosecutor’s comments on his own credibility:

“Seventeen years and eleven months ago yesterday, I signed on, I signed on to serve at the pleasure of Norman K. Maleng. . .And two things stood out for me very shortly into my career as a prosecutor, two tenets that all good prosecutors, I think, believe.  One is that when you have got a really, really, really strong case, it’s hard to come up with something really, really, really compelling to say.  And the other is that the word of a criminal defendant is inherently unreliable. Both of those tenets have proven true time and time again over the years, and they have done it specifically in this case…”

This statement has a shocking amount of problems with it. The prosecutor invoked the name of a popular, deceased prosecutor (irrelevant), the length of his career (irrelevant), that his case is really, really, really strong (prejudicial and irrelevant), and that the word of a defendant is “inherently unreliable” (amazingly prejudicial to this and future trials). These comments, bolstering State credibility and diminishing the credibility of defendants, is really the essence of prosecutorial misconduct: looking for a verdict for reasons other than evidence.

This gem: “And the code is black folk don’t testify against black folk” was, again also problematic.

The court spoke at length about the responsibilities of prosecutors and other government officials, then the obligation to ensure a fair trial to everyone regardless of perceived guilt or severity of crime.

The opinion uses some great language about why the prosecutor’s comments were so impactful to our ideas of equal justice: “A ‘[f]air trial’ certainly implies a trial in which the attorney representing the state does not throw the prestige of his public office . . . and the expression of his own belief of guilt into the scales against the accused.” and “[T]heories and arguments based upon racial, ethnic and most other stereotypes are antithetical to and impermissible in a fair and impartial trial.”

But my favorite line of the opinion was the simplest: “If justice is not equal for all, it is not justice.”

The court held the comments taken as a whole were so flagrant and prejudicial that the State did not meet its burden in showing the verdict was untainted by the comments. Because of that, the court reversed the conviction of Monday and ordered the case remanded to the trial level. Whether Monday gets a new trial is an interesting question, as there may be double jeopardy concerns (a post for another day). But regardless, the prosecutor’s comments caused the taxpayers money and impacted the entire justice system. The opinion by our supreme court was unpopular but brave, and re-asserted our state’s commitment to equal justice for all. The fact is, without these reversals there would be no incentive for any lawyer to change their behavior. If the highest court in the state comes down so strongly on conduct, you can expect changes. As it should be.

As I mention in my FAQ, I was a former public defender before opening my firm. Whether working in the public or private sector I remain committed to criminal defense, because I believe everyone who is accused of a crime should get a fair shake. Prosecutors wield enormous power, and it’s up to everyone, defense attorneys, judges, and even prosecutors, to make sure all defendants get a fair trial according to the rule of law.

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  • Laura

    Nice. The jury’s mad, though.

  • That’s a fair point. I’m sure the jury is annoyed anytime their verdict gets reversed on appeal. I suppose we just have to thank them for their dedicated service, and hope the next jurors’ findings get upheld because the trial was fair.

  • Chad

    Noah as to your question on the issue of Double Jeopardy, I believe that Double Jeopardy would not exist in this case because the result was not a legitimate conviction. If the conviction or acquittal are not legitimate then Double Jeopardy can not exist. Have the case overturned due to misconduct, I believe, would be a kin to having the case dismissed due to a mistrial. Again this is just my thoughts. Great article.

  • Well Chad it’s an interesting question. In Oregon v. Kennedy, 456 U.S. 667 (1982), the U.S. Supreme Court held double jeopardy applied when prosecutorial misconduct was so flagrant as to goad defense counsel or the court into granting a mistrial. South Carolina made a similar ruling in a murder trial:

    I don’t know if the WA courts have squarely addressed the question of what applies when a conviction is reversed, rather than a mistrial granted, due to the same type of misconduct. I expect the defense attorney to at least make the motion.

  • Chad

    Noah after reading the holdings for Oregon v. Kennedy, 456 U.S. 667, I do not believe that this case applies. In Oregon v. Kennedy the holding discusses where the actions of the prosecutor or judge intended to provoke a mistrial. Now my understanding of State v. Monday is limited but I do not believe that the prosecutor acted with the intention to provoke a mistrial. Furthermore since there was no mistrial in State v. Monday, only an overturning of the original ruling, case law dealing with prosecutorial misconduct leading to a mistrial would be moot. Also the State was not attempting to goad the defense into a mistrial which is a major factor in Double Jeopardy being activated.

    Again my background is limited to my paralegal certification so I could be wrong.

  • I do hear where you’re coming from. As I said, I haven’t found a Washington case that squarely tackles the issue. It was dicta, but State v. Cochran, 51 Wn. App. 116 (1988), discussed the rule somewhat. I don’t know where this state will land on the issue, but the courts will certainly address the argument.

  • Pingback: State v. Monday: An Epilogue | Seattle criminal defense attorney | Law Office of Noah Weil()

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