SJC UPHOLDS CONVICTION DESPITE PROSECUTOR’S PERSONAL ATTACKS ON DEFENDANT

In a criminal jury trial, lawyers are generally not allowed to personally attack a witness’s character or to criticize or verbally abuse a witness. In Commonwealth v. Cadet, the SJC affirmed the defendant’s conviction  for first-degree murder and the denial of his motion for a new trial despite such attacks by the prosecutor.  In doing so, it “concluded that, although there were improprieties in the prosecutor’s conduct at trial, including in his cross-examination of the defendant and in his closing argument, they did not create a substantial likelihood of a miscarriage of justice.” The defendant was accused of stabbing his girlfriend to death.  “At trial, the defendant did not contest that he had stabbed the victim, but argued that he had done so in self-defense, after she became enraged and attacked him with two knives.” Regarding the cross-examination of the defendant, the Court stated that  “in a number of instances … the prosecutor’s questioning bordered on the abusive…. For example, he repeatedly asked sarcastic, gender-stereotyped questions of the defendant as to whether he was too ‘weak’ or ‘frail’ to fend off a woman, particularly one who was smaller than he…. The prosecutor also asked several times whether, while the victim was ‘bleeding to death,’ the defendant had heard her blood ‘gurgling’ in her throat, although there was no evidence of ‘gurgling’; and he displayed photographs of the victim’s wounds to the defendant, commenting, ‘go on, you can look at it, you did it,’ followed by additional similar commentary. These questions and comments were wholly unnecessary and improper.”

The Court addressed the prosecutor’s closing argument, noting that “at times it crossed over the line of propriety and what is expected from a prosecutor.” For example, several references to the defendant as a “‘monster’” “came close to an invitation to the jury that they convict the defendant because of his bad character.” Moreover, “the prosecutor described the defendant’s account of the stabbing four separate times as ‘crap, pure and simple,’ or simply ‘crap,’ and another time as ‘a line of bull.’ It is permissible for a prosecutor to argue that a defendant’s testimony is not credible, … but repeated use of crude slang to describe the defendant’s version of the critical events, as the prosecutor did here, is offensive and demeaning, and runs the risk of transforming criticism of the defendant’s testimony into an attack on the defendant’s character…. Further, the prosecutor’s persistent and graphic references to the victim’s injuries appeared designed improperly to appeal to the jurors’ sympathies and emotions.” These improprieties in the prosecutor’s closing impelled the Court to “commend to trial judges the suggestion that, immediately before counsel make their closing arguments, jurors be provided with a brief instruction about the purposes and limitations of closing arguments.”

Finally, the SJC rejected the defendant’s contention that he was deprived of a fair trial by “the prosecutor’s references to the ‘victim’ throughout the trial and in his closing argument,” which purportedly “‘prejudged’ the questions of self-defense and mitigation.” However, the Court “emphasized that the better practice in a case such as this one is for the prosecutor, defense counsel, the judge, and all of the witnesses to refrain from describing the person killed as the ‘victim.’”

 

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