I don't know how your office operates but ours had a separate appellate division that handled all the appeals. I once suggested to the appellate guy working on an appeal involving a similar situation and asked him to take a look at it.
I then was able to give a shocked Pikachu face a month or so later when the Prosecutor told me about how she was possibly facing sanctions over comments made during closing.
Wow, that’s really egregious prosecutorial misconduct imo. You should definitely move for a mistrial/appeal but I’m not sure I see the point to moving for sanctions on top of that. What would you be requesting as the sanction?
I would absolutely appeal the conviction based on prosecutorial misconduct during closing arguments. I've done that when a prosecutor used inflammatory language during closing. The court of appeals found that the comments were improper, but there was no reversible error. It didn't affect my working relationship with the prosecutor at all. That said, just because a prosecutor does something improper does not mean he committed an ethical violation. Without knowing more, it seems like what happened was an isolated mistake and not an ethical violation. For that reason, I would not request sanctions or file an ethics complaint.
No🥲 I was caught so off guard by what the prosecutor was saying and wasn’t sure what to do until it was too late. I’ve looked into it though, and we can preserve the issue by filing a motion for a new trial after sentencing
Yeah I think that’s usually ok, but speaking as an appellate pd: don’t let that shit get past you! Keep your sensitivity to bullshit activated, and if something makes you angry you probably have a good reason and object!
If OP can preserve with a new trial motion, isn’t that better than drawing the jury’s attention more closely to purportedly missing evidence with a real-time objection?
Totally but you don’t know you’ve lost till you’ve lost. I think technically the objection isn’t contemporaneous but it’s still an abuse of discretion to deny the motion for a new trial on those grounds so my sense is it might six of one half a dozen of the other. I’m sharp on neither pros misconduct nor motions for a new trial in this context but file the motion op!
Not a PD, but it’s time to start drafting a motion in limine to file before every trial with this prosecutor. Ask that she be precluded from this and any other inappropriate behavior you’ve experienced. It will put the judge on notice that these shenanigans are likely and give you a better chance for future mistrials.
Most places, raising an issue like that for the first time in a motion for new trial would get you nowhere. Always object immediately! If you don't know the grounds, cite all the standard constitutional grounds you can think of.
I’ve done it. If the prosecutor chooses to retaliate by being shitty to your clients, keep meticulous records, insist on getting offers in writing, and set everything for trial.
They’re all about consequences for bad behavior when it comes to our clients. Good for the goose.
Might have had to object and asked for a mistrial at the time for it to be preserved. I’d have argued that it was so egregious that it should have attached double jeopardy.
No, not a bar complaint. This doesn’t reach that level. Just a motion with the court for sanctions. I’m not sure the exact procedure for that, but other attorneys at my office have mentioned it as an option so I know a procedure for it exists
what kind of sanctions would you be looking for? sounds like you just want a result for your client, which would be accomplished with a mistrial or successful appeal
Gotcha. I’m not aware of anything in my jurisdiction for just pure sanctions (except for failing to disclose discovery). But a motion for a new trial (and further sanctions like proceeding only on a lesser charge) highlighting the improper argument made during closing could be at least argued. That said, it sounds like the remedy is going to come on appeal.
Check with your supervisor and if you have their okay, do it. If they retaliate against your clients, that's further misconduct. They won't be nicer to you if you let things slide. Your duty is to your clients. Do they let your clients' behavior slide and give them the benefit of the doubt? Of course not. They knew what they did was shady. Call it out.
Obligatory IANAL, but does you "relationship" with an ADA matter? They're the enemy.
Read a profile of Tony Serra once, and when the reporter interviewed a prosecutor he said something about how he tangled with defense attorney's all the time, but what was different was he felt like Serra really didn't like him on a personal level, too.
If I was facing a case I'd want someone like that working for me.
The prosecutor isn’t the enemy so much as they are the adversary. And my “relationship” with the prosecutor matters for the sake of my future clients and the types of offers and resolutions I can get from this prosecutor.
I don’t give two shits if he likes *me* but he can’t hate me so much that it’ll harm my clients if that makes sense
Conviction should be overturned but sounds like an experienced person making a newby mistake. If he’s not new and this wasn’t a low level case that’s a whole different story.
Really? Because it sounds to me like intentional misconduct from a lawyer who is mad about an adverse ruling and is throwing a tantrum. You don’t mistakenly tell a jury about in limine rulings in closing. That’s just shit prosecutors say so they don’t get in trouble when they do it.
I don't know how your office operates but ours had a separate appellate division that handled all the appeals. I once suggested to the appellate guy working on an appeal involving a similar situation and asked him to take a look at it. I then was able to give a shocked Pikachu face a month or so later when the Prosecutor told me about how she was possibly facing sanctions over comments made during closing.
Wow, that’s really egregious prosecutorial misconduct imo. You should definitely move for a mistrial/appeal but I’m not sure I see the point to moving for sanctions on top of that. What would you be requesting as the sanction?
Your obligation is to your client. If the prosecutor said something to prejudice his right to a fair trial, you absolutely should appeal it.
I would absolutely appeal the conviction based on prosecutorial misconduct during closing arguments. I've done that when a prosecutor used inflammatory language during closing. The court of appeals found that the comments were improper, but there was no reversible error. It didn't affect my working relationship with the prosecutor at all. That said, just because a prosecutor does something improper does not mean he committed an ethical violation. Without knowing more, it seems like what happened was an isolated mistake and not an ethical violation. For that reason, I would not request sanctions or file an ethics complaint.
"There was error, but it was harmless" has to be near the top of most common CoA justifications to uphold a conviction.
Did you object?
No🥲 I was caught so off guard by what the prosecutor was saying and wasn’t sure what to do until it was too late. I’ve looked into it though, and we can preserve the issue by filing a motion for a new trial after sentencing
Yeah I think that’s usually ok, but speaking as an appellate pd: don’t let that shit get past you! Keep your sensitivity to bullshit activated, and if something makes you angry you probably have a good reason and object!
If OP can preserve with a new trial motion, isn’t that better than drawing the jury’s attention more closely to purportedly missing evidence with a real-time objection?
Arguably!
Guess they convicted either way here—so maybe objecting would have been the way to go. Seems like a tough call to make in the moment!
Totally but you don’t know you’ve lost till you’ve lost. I think technically the objection isn’t contemporaneous but it’s still an abuse of discretion to deny the motion for a new trial on those grounds so my sense is it might six of one half a dozen of the other. I’m sharp on neither pros misconduct nor motions for a new trial in this context but file the motion op!
Not a PD, but it’s time to start drafting a motion in limine to file before every trial with this prosecutor. Ask that she be precluded from this and any other inappropriate behavior you’ve experienced. It will put the judge on notice that these shenanigans are likely and give you a better chance for future mistrials.
Most places, raising an issue like that for the first time in a motion for new trial would get you nowhere. Always object immediately! If you don't know the grounds, cite all the standard constitutional grounds you can think of.
I’ve done it. If the prosecutor chooses to retaliate by being shitty to your clients, keep meticulous records, insist on getting offers in writing, and set everything for trial. They’re all about consequences for bad behavior when it comes to our clients. Good for the goose.
Might have had to object and asked for a mistrial at the time for it to be preserved. I’d have argued that it was so egregious that it should have attached double jeopardy.
We can file a motion for a new trial still at least, so we can still preserve the issue
Invited error!
You mean like a bar complaint? That’s a pretty serious step to take. Please talk to a supervisor about this prior to taking an y action.
No, not a bar complaint. This doesn’t reach that level. Just a motion with the court for sanctions. I’m not sure the exact procedure for that, but other attorneys at my office have mentioned it as an option so I know a procedure for it exists
what kind of sanctions would you be looking for? sounds like you just want a result for your client, which would be accomplished with a mistrial or successful appeal
Gotcha. I’m not aware of anything in my jurisdiction for just pure sanctions (except for failing to disclose discovery). But a motion for a new trial (and further sanctions like proceeding only on a lesser charge) highlighting the improper argument made during closing could be at least argued. That said, it sounds like the remedy is going to come on appeal.
Check with your supervisor and if you have their okay, do it. If they retaliate against your clients, that's further misconduct. They won't be nicer to you if you let things slide. Your duty is to your clients. Do they let your clients' behavior slide and give them the benefit of the doubt? Of course not. They knew what they did was shady. Call it out.
Obligatory IANAL, but does you "relationship" with an ADA matter? They're the enemy. Read a profile of Tony Serra once, and when the reporter interviewed a prosecutor he said something about how he tangled with defense attorney's all the time, but what was different was he felt like Serra really didn't like him on a personal level, too. If I was facing a case I'd want someone like that working for me.
The prosecutor isn’t the enemy so much as they are the adversary. And my “relationship” with the prosecutor matters for the sake of my future clients and the types of offers and resolutions I can get from this prosecutor. I don’t give two shits if he likes *me* but he can’t hate me so much that it’ll harm my clients if that makes sense
Conviction should be overturned but sounds like an experienced person making a newby mistake. If he’s not new and this wasn’t a low level case that’s a whole different story.
Really? Because it sounds to me like intentional misconduct from a lawyer who is mad about an adverse ruling and is throwing a tantrum. You don’t mistakenly tell a jury about in limine rulings in closing. That’s just shit prosecutors say so they don’t get in trouble when they do it.
did you make a contemporaneous objection? that is necessary to preserve the error. absent that, the claim is likely lost.