Ignorance of the law is no excuse (unless you’re a prosecutor)

In this hot-off-the-presses case of State v. Smith (court decision here, On Point summary here), a Wisconsin prosecutor made an improper closing argument to the jury in an effort to win a conviction.  In a “sarcastic” and “belittling” manner, the prosecutor criticized the role of defense lawyers (in this case, public defenders) and also attempted to shift the burden of proof to the defense.  (These are two of the sleaziest, yet most common, tricks in the prosecutor’s bag.)  Then, on the defense lawyer’s motion, the trial judge declared a mistrial.  However, despite the prosecutor’s misconduct, the state was allowed to retry the defendant.  But why?  And how can defense lawyers prevent this from happening in the future?

First, with regard to the retrial, the court gave the state another kick at the cat because although the prosecutor’s argument was improper, prejudicial, and justified the mistrial, the prosecutor was probably not intending to provoke a mistrial request.  Rather, the court believed, “the prosecutor was an extremely inexperienced attorney and, as such, it was more likely that he was simply acting out of lack of experience rather than intending to make statements that would cause a mistrial.”

Inexperienced?  Really?  The prosecutor certainly didn’t present himself that way to the jury.  His improper argument began as follows: “But I do love this. I do love these little—you do enough of these and you notice a lot of public defenders do this.”  I guess, then, that he’s dishonestly portraying himself to the jury as an old pro—one who has been around the block, has done “enough of these” trials, and knows the ropes.  But the state can’t have it both ways.  Is he a savvy veteran or is he so wet behind the ears that he thinks it’s okay to demean public defenders and shift the burden of proof to the defense?

Second, as to what defense lawyers can do to prevent retrials, one approach is to educate prosecutors (the so-called ministers of justice) on what is an improper argument.  As I wrote in Combating Prosecutorial Misconduct in Closing Arguments, 70 Okla. L. Rev. 887 (2018), this can be done through a pretrial motion in limine (MIL) asking the judge for an advance ruling prohibiting improper arguments. 

The trial judge might not rule on the MIL, and instead may simply say that “attorneys are expected to know and follow the law.”  But even if the judge takes this lazy route—why spend ten minutes upfront when you can spend hours or even days on the problem later?—the MIL might deter the prosecutor from making improper arguments in the first place.  And even if it fails to accomplish that, the mere filing of the MIL will have educated the prosecutor and put him on notice about what is an improper argument and that such conduct won’t be tolerated.  Then, if there is an improper argument and a mistrial (two topics that are also discussed in the article) the prosecutor will not be able to use his ignorance of the law as an excuse to get a second kick at the cat, a/k/a/ retrial. 

(I love, by the way, how prosecutors, who are trained in the law, are allowed to use “ignorance of the law” as an excuse, while the ordinary citizens they prosecute and send to prison are not entitled to such a defense.  That is pure hypocritical bullshit, to put it mildly, but that’s a topic for another post on another day.)

My sample MIL, which can be found in Appendix A of my article, covers both (1) belittling of defense counsel and (2) burden shifting—the two improper arguments used by the prosecutor in State v. Smith.  (As I wrote, above, these are two very common ways that prosecutors cheat.)  In listing the types of improper arguments that the court should prohibit, the MIL reads in part:

Disparaging defense counsel or counsel’s role in the criminal justice system. For example, the argument that “defense counsel’s job is to get his client off the hook,” and similar arguments, are “improper and deserving of condemnation.” State v. Mayo, 734 N.W.2d 115, 121-22 (Wis. 2007). See also United States v. Xiong, 262 F.3d 672, 675 (7th Cir. 2001) (“disparaging remarks directed at defense counsel are reprehensible” and could lead “the jury to believe that the defense’s characterization of the evidence should not be trusted”).  . . . .

Argument that misstates the law, including but not limited to the state’s burden of proof.   . . . .

In sum, then, filing a MIL in an effort to prevent prosecutorial misconduct in closing argument may (1) result in an order prohibiting such conduct, (2) deter such misconduct even if the judge refuses to rule on the MIL, and (3) bar retrial in the event the prosecutor cheats and the defense lawyer requests and obtains a mistrial.

For all of my law review articles on a variety of criminal law (and other) topics, see the articles page of my website, here.  And stay tuned to The Legal Watchdog for posts announcing my four new law review articles, which will be posted very soon.