I had various reactions to this one.
I first read the initial seven pages of the opinion, involving an appeal filed by a serial rapist who was sentenced to life in prison. Those first pages discuss the facts of the rapes. My reaction? "I'm incredibly happy they caught this guy and put him in prison. Hopefully forever." That feeling persists.
Then I read the next dozen or so pages, involving a legal discussion of the Confrontation Clause and the obligation (or not) to put on the testimony of the actual person(s) who conducted the DNA testing. This is an incredibly messy area. The Court of Appeal does a decent job of trying to sort it out. Including parsing out which Supreme Court justices said what -- and the implications thereof -- in the relevant precedent. Dry stuff, but important. So I thought: "Pretty good. Especially on a tough topic." Though you can somewhat tell that there's a bit of a thumb on the scale towards doing whatever needs to be done to uphold this guy's convictions and keep him in prison.
Then I read the next half-dozen pages, starting at page 19. Which involves a discussion of alleged prosecutorial misconduct in various arguments made by the government during the defendant's trial. At which point I think: "Holy crap. The thumb on the scale is way, way heavy here. Too heavy. Not only is the prosecutor doing really bad stuff, but both the trial court and the Court of Appeal are letting him/her get away with it. Holding that what, to me, are clear errors aren't errors, or that certain statements don't "necessarily" mean what they obviously do, etc. None of that's pleasing. At all. Maybe some of these errors are harmless (or maybe not), but saying that they're okay is just wrong. Both on the merits as well as because it encourages similar conduct in the future. So for those eight to ten pages, I'm really not happy with the Court of Appeal and the trial court. Which I assume is how the opinion is going to end.
But then I get to the final couple of pages of the opinion. In which, IMHO, the Court of Appeal finally gets it -- as did the trial court -- and does something about it. Below, the defense counsel moved for a mistrial based on a variety of things the prosecutor said, the vast majority of which the trial court allowed. That's usually totally a totally useless motion, and even here, the trial court denies the motion.
But the trial court nonetheless says that some of the prosecutor's arguments were indeed "troubling," adding that "no attorney should get so wrapped up in winning that they forget their professional obligations." It then stated that, for the first time in 17 years on the bench, she felt that the misconduct was sufficiently serious to warrant a curative instruction to the jury. And, accordingly, instructed the jury:
“Ladies and gentlemen of the jury, before I give you your final set of instructions, I need to clarify certain matters.
As I told you before, statements that the attorneys make during argument [are] not evidence. Your decision must be based on the evidence. The attorneys may properly comment on the evidence and suggest how you should view the evidence, but they must do so in an appropriate fashion.
On several occasions, the District Attorney improperly attempted to appeal to your passions and sympathies. For example, the District Attorney . . . suggested to you that Jane Doe . . . 1 has lived with fear for 15 years and she would now finally get peace. The District Attorney also improperly suggested that we in society have a special place in the criminal justice system for people who rape children.
Moreover, the attorneys may not knowingly misstate the law to you. The District Attorney improperly suggested that you should ignore the law regarding applying the standard of proof beyond a reasonable doubt, telling you that it is a shield for the innocent and not a loophole for the guilty. The determination of guilt must be based upon application of the reasonable-doubt standard, and you cannot separate your determination of guilt from that standard.
As I also mentioned at the outset, this is an emotional case. Your job is to set aside your emotional reaction to the charges and, quite frankly, to set aside any conduct by the lawyers, to view the evidence objectively, to determine if the charge has been proved beyond a reasonable doubt, and then reach your decision regarding the defendant‟s guilt based upon your consideration of the evidence and the law.”
Let's hear it for that. Actually doing something about misconduct rather than simply justifying -- and ratifying -- it. Even in a big case in which the defendant truly deserves incarceration. Let's tell the jury what's up and trust it to do the right thing even knowing that what the prosecutor has done is wrong. I like it. I liked it a lot.
Moreover, just as the trial court was somewhat redeemed in my eyes, so too was the Court of Appeal. Which added, albeit in a footnote, the following:
"We are not in any way condoning the prosecutor‟s misconduct discussed in Section C. The trial judge was rightfully troubled by the manner in which the prosecutor argued the case. She stated that for the first time in 17 years on the bench, she felt the misconduct was serious enough to warrant a curative admonition to the jury. In three prior appeals, of which we took judicial notice, the same prosecutor was criticized for improper conduct, including the observation in People v. McKenzie (Aug. 1, 2007, A112837) [nonpub. opn.], page 1 that the prosecutor had engaged 'in a troubling and extensive pattern of misconduct.' We direct the clerk of the court to send a copy of this opinion and the Request for Judicial Notice with copies of the three prior opinions of which we took judicial notice to the Alameda County District Attorney Nancy O‟Malley so that she can personally address this matter with the prosecutor so that this type of misconduct does not reoccur."
Good job. Exactly right. I might have liked the Court of Appeal to say the same thing without some of the ratification that I saw in Section C. But at least the footnote was a start. As well as an express recognition that something was wrong here and worthy of correction. Both in this case as well as in others.
So lots of thoughts when I read this one. Some good stuff as well.