Crickey. There's some strong language about the prosecutor in Justice Rushing's opinion in this case, which reverses on grounds of prosecutorial misconduct. Fortunately (for the prosecutor), the offending party isn't named. But yikes. I wouldn't want to be him/her.
I'm not (as you might imagine) a huge fan of prosecutorial misconduct, but I honestly didn't think that what the prosecutor did was all that bad here. Admittedly, after reading Justice Rushing's opinion, I agree that it was misconduct. But wow, there's some harsh language in there.
I'll summarize the case -- which isn't all that long (nine double-spaced pages) -- fairly quickly. It's a (an?) SVP (Sexually Violent Predator) case, and -- under controlling (and entirely proper) precedent -- the jury's not supposed to be told what happens if they find that the defendant is a SVP. We basically don't want the jury to know that if they say he's a SVP, he'll simply go to a hospital, on the theory that this might convince the jury to say to itself: "Oh, what's the harm; maybe he's an SVP, maybe he isn't, but he seems pretty crazy, so let's just send him to the hospital regardless." We just want the jury to find the facts, without thinking about what the ultimate punishment/consequence of their decision might or might not be. Seems reasonable to me.
So the defendant files a couple of in limine motions, which the trial court grants, telling the prosecutor not to tell the jury that the defendant goes into a hospital if the jury concludes that he's a SVP. But the prosecutor -- for whatever reason -- makes multiple not-so-thinly-veiled references to the fact that if the jury finds that the defendant is a SVP, he'll go to the hospital. Maybe the prosecutor is doing this deliberately, and maybe not. Here's, inter alia, what the prosecutor says:
“[Y]ou’re not supposed to let penalty or punishment factor into your decision. You’re not supposed to let the consequences of your decision factor into your decision. And that’s a difficult thing to do. But you should all do it, and let me tell you one reason why. And that is that if you do speculate about the consequences of your decision, you’re probably going to guess wrong. And I’m not trying to insult anybody here, but let me just tell you it’s best if you don’t speculate about what the consequences will be, and then you can ask afterwards. We can talk about it afterwards. It’s no secret. . . . The defense has had some testimony about how difficult a place Atascadero State Hospital is. It’s a stressful environment, that sort of thing. And that testimony is intended at least in part to make you think sympathetically towards the [defendant]. . . . [Y]ou should not make a decision based on what you think it’s going to be like for the [defendant] in Atascadero State Hospital. That’s not for you.”
So at least ostensibly, the prosecutor was saying "Don't think about where the defendant will go when deciding whether he's a SVP." But, at least allegedly, what the prosecutor is really saying is: "Don't think about where the defendant will go. You might think he's going to prison, but you'd be wrong. He'd just be going to the State Hospital for treatment."
There's more good stuff (and more details) in the actual opinion. But, to make a not-very-long story not-very-short (my forte), Justice Rushing doesn't at all think that the prosecutor's statements are of the "innocent" sort. Here's a flavor of what Justice Rushing says about the prosecutor: "We find the prosecutor’s comments here to be deceptive and reprehensible in addition to being in direct contravention of the trial court’s orders." Ouch. Further: "We are especially troubled by the fact that the prosecutor made the comments after not one but two in limine orders that he not make reference to the consequences of a true finding. In spite of the court orders, however, the prosecutor specifically told the jury in his final, rebuttal argument in no uncertain terms 'you should not make a decision based on what you think it’s going to be like for [defendant] in Atascadero State Hospital.' (Italics added.) We agree with defendant’s trial counsel that such statement made it 'crystal clear to this jury. Don’t worry about [defendant], he’s just going to the hospital. He’ll get his treatment.'”
Lesson for the day: Don't blatantly violate the court's orders in a deliberate attempt to prejudice the defendant. You might hack off the Court of Appeal. And they'll be mean to you.
That said, Supplemental Lesson: At least they won't say who you are. But people in your office will know, and that probably won't look good on your permanent record, Chip.
