December 24, 2006
Crackdown on prosecutor conduct
Minnesota’s high court is targeting trial misconduct by prosecutors. County attorneys are crying foul; defense lawyers are applauding.
By Paul Gustafson, Star Tribune
Minnesota prosecutors, the people accustomed to dishing out punishment, have found themselves on the receiving end of two recent state Supreme Court decisions that targeted improper closing arguments and other out-of-bounds trial behavior.
Prosecutors are bristling over the decisions, but many defense lawyers believe the stiff medicine is overdue.
In one case, the court reversed a gang member’s first-degree murder conviction because of what it called “pervasive” misconduct by the prosecutor, even though the state’s evidence was strong.
“You wouldn’t know the truth if it hit you in the face, would you, Mr. Mayhorn?” then-Clay County Attorney Lisa Borgen asked the defendant during questioning. The justices said Borgen tried to play on the passions of the jury and misstated the evidence. Borgen has since said she should not have questioned the defendant in that manner.
In another case the court changed a longstanding legal rule, putting the burden on prosecutors to prove that their misconduct didn’t substantially harm defendants’ rights in some criminal cases.
“We have identified numerous kinds of trial conduct that are improper for prosecutors. … Nevertheless, we continue to see cases in which prosecutors persist in clearly proscribed conduct,” Justice Helen Meyer wrote in September for a 4-3 majority in State vs. Ramey.
Ramsey County Attorney Susan Gaertner said that she understands that the goal is to do justice, not just win.
“But this is an adversarial system, and if you tie the hands of the prosecutors when they go into that arena, it doesn’t serve either public safety or justice,” she said.
Many defense lawyers and legal experts, however, think it’s about time that courts stop warning prosecutors about misconduct and start doing something to stop it.
“There has to be some kind of remedy, some consequences for behavioral errors that occur over and over again,” said Hennepin County Chief Public Defender Lenny Castro. “I don’t think the new standard is unfair at all.”
In Minnesota, prosecutors’ misconduct generally involves improper questioning of witnesses and closing arguments, according to prosecutors and defense lawyers.
Examples are when prosecutors voice their own opinion on the truthfulness of witnesses, appeal to the base emotions of jurors or use facts not introduced in evidence.
The Minnesota Supreme Court isn’t the only court expressing frustration with the issue.
In 2003, the Illinois Supreme Court overturned the convictions of two men given life sentences for their roles in the murder of a Chicago police officer, citing improper prosecutor trial tactics and arguments.
It threatened to overturn more cases to reduce the “alarming frequency” of prosecutor misconduct, which it called “a problem that courts across the country have, for the most part, been unable or unwilling to control.”
Appeals court judges in several states “are starting to wring their hands” trying to find effective ways to discourage prosecutor misconduct, said Peter Joy, a professor at Washington University School of Law in St. Louis.
Some judges have tried shaming misbehaving prosecutors by naming them in court decisions. But they found that it only enhanced the prosecutors’ reputations among peers, “because it shows they are willing to do what it takes to get the ‘bad guy’ … that they’re willing to get down in the gutter,” Joy said.
In most states, even when prosecutor misconduct is found, defendants still carry a heavy burden to prove that their constitutional rights were substantially violated, he said.
Some of the worst examples of misconduct attributed to prosecutors in other states, such as withholding evidence or hiding witnesses from the defense, have not cropped up in Minnesota courtrooms.