In yesterday’s post, And The Trayvon Martin-George Zimmerman/ George Floyd/ Kyle Rittenhouse Ethics Train Wreck Rolls On….., I wrote in reference to the certifiably terrible closing arguments by both sides in the Rittenhouse trial,
“It looks to me as if Judge Schroeder has stacked the deck: he allowed enough improper summation conduct from the State to ensure a reversal if Rittenhouse is convicted, and also allowed sufficient cheats by the defense to make an acquittal more likely.”
That statement is still accurate as far as it goes, but a friend, colleague and experienced trial lawyer just called to remind me that improper statements or actions in summary arguments in civil and criminal cases that would otherwise justify a mistrial are considered waived if opposing counsel doesn’t make a timely objection.
The judge can (and should) also intervene if an attorney crosses the ethical and legal lines in closing, but my friend emphasizes that most judges won’t, preferring to leave that task to the lawyers. Attorneys, meanwhile, are very reluctant to interrupt an opponent’s closing argument to object. If they do and are over-ruled, they lose credibility with the jury. Mid-closing interruptions are also seen as Golden Rule breaches, though that should not matter: the lawyer’s duty to the client surpasses any obligations to opponents.
There are five generally recognized types of prosecutorial misconduct in closing arguments. The Rittenhouse prosecution engaged in at least the first four:
1. Intentionally misstating the evidence or misleading the jury regarding permissible inferences.
2. Expressing personal beliefs or opinions regarding the veracity of testimony or evidence or guilt of the defendant;
3. Engaging in arguments (or conduct) designed to inflame the passions or prejudices of the jury;
4. Using arguments which divert the jury from deciding case on the evidence, injecting issues broader than the question of guilt of the defendant under the controlling law, or making projections of consequences of the jury’s verdict;
5. Intentionally referring to or arguing facts not in evidence where the facts are not matters of common public knowledge.
Remember, however, that while an improper closing may slip through to the point where it can’t be remedied by the law, engaging in any of the five breaches above are still subject to ethics sanctions, at least theoretically. But as we’ve also discussed here recently, examples where unethical prosecutions are disciplined are rare.
The two routes that can allow a prosecutor’s improper statement or action (like aiming a gun at the jury) to be be used to argue for a reversal and a new trial is if it proves ineffective assistance of counsel because it was not objected to, or if an appellate court holds that it constituted judicial error for the judge not to intervene. Both routes are difficult and seldom work; the latter is especially hard to achieve.