Yep. It couldn't be more crystal clear that a prosecutor can't tell the jury that it should put itself in the victim's shoes. That's why they call it the "Golden Rule."
Nor could it be more crystal clear that the prosecutor violated that rule here. She totally, totally did. Conviction reversed.
Don't know how the prosecutor could have made such a basic error. Or how the trial court could have let it go. Thankfully, that's why we have a Court of Appeal.
One other, admittedly parenthetical and non-doctrinal, comment.
I know I shouldn't have sympathy for Andrew Vance. The victim told Vance's girlfriend that Vance was cheating on her, and Vance decided to get back at him. He lured the victim to a canyon on the pretense of getting more methamphetamine and then put the victim in a chokehold, tied his hands behind the back, and threw him into the canyon to "teach him a lesson".
Not cool. Not acceptable. Regardless of whether Vance meant to kill him or not -- and there's a fair piece of evidence that he was just trying to give him a strand him there -- the fact is that the victim died, and there's not the slightest bit of excuse in any event for what Vance did.
Nonetheless, when I read the transcript of Vance's interrogation, I don't come off with the impression that he's an absolute, unredeemable monster. Moreover, the fact that the police are deliberately lying to the guy, and playing off his seemingly sincere emotions, only serves to make Vance look better by comparison. A snippet of the interrogation:
“[Officer] KELLY: Look, dude, we're not here to . . . we just want to find the truth out, alright? We just want to hear your side of the story, how things went down, okay? We know Deuce is dead. That's fine, okay, and we are not sitting here saying you're some kind of crazy serial killer or something like that. Some bad shit happened. We just want to figure out what happened so we can tell Deuce's family, okay? Alright dude, we don't think anything of you, we're not here to judge you. [That'll be the jury, when we indict you for first-degree murder.] We know it wasn't supposed to go down that way [-- though we'll say exactly the opposite at your trial --] and it did you know what I mean. Something went down. It wasn't supposed to go that way, but it happened, bro [Love the 'bro mention], and now we have to get to the bottom of it, figure this shit out man, you know? I know you are upset man, but let's get through this together all right? [We're totally on your side, dude!] We're not here to fuck with you, man. [Yeah, right]
“[Officer] NORTON: It takes a big man to be honest all right and I know you have that in you all right. It takes a big man to be honest.
[VANCE begins crying]
“KELLY: Dude, it's okay, bro, alright. It's alright, bro. We're not here to mess with you, all right. We are here to listen and then to help you out. [Yeah, bro. That's totally what we're doing here.]
“VANCE: (crying) That's what everybody always tells me and then I end up getting fucked. [Yep. Couldn't be more right.]
“KELLY: Well, we're not here to do that bro, [!] we're just here to find out the truth about what happened. And I think you have a lot on your chest right now, and I think you need to talk about this, I know you want to talk about this.
“NORTON: This has been weighing on you for the last two weeks.
“KELLY: The last two weeks have been fucked.
“NORTON: Tell us what happened. Come on Drew, what happened, buddy.
“KELLY: Keep it real with us Drew. Man we're not going to sit here and judge you, buddy.
“VANCE: (crying) It doesn't matter anyway I'm just going to go to prison and rot and never come out of there."
It just tugged a bit on my heartstrings, however inappropriately, that every word that Vance -- the defendant -- said was true, and entirely sincere and accurate, whereas everything the officers said was both a lie as well as a deliberate and intentional falsity.
Vance basically conceded at trial that he was guilty of second-degree murder. Now he gets a new trial to see if that's the offense for which he's convicted. Without a violation of the Golden Rule.