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Bad Closing Argument Gets Felony Conviction Reversed

Bad Closing Argument Gets Felony Conviction ReversedHave you tried watching a cable news channel recently? I can’t do it. There’s always two to four talking heads arguing, and you can’t even understand the point they’re trying to make because they’re talking over each other (at least “Around the Horn” on ESPN utilizes a MUTE button, very effective). Good luck trying to glean any sort of useful analysis from a cable news program. But, if you’ve never checkout out a real life debate, you should. Debates are organized, and often informative. The structure of a debate facilitates the digestion of difficult material in a short period of time (assuming, of course, that the debate organizers have selected the proper panel). One of my favorite sites for debates is Intelligence Squared. Most of these debates are well organized, and both sides are well represented.

Our criminal justice system has similar rules to these debates. Even though we criminal defense lawyers waive the Constitution every chance we get, our First Amendment right to free speech doesn’t apply when a jury is listening. Under Florida’s evidence code, a jury may only be told certain things regarding the evidence, certain things regarding the potential sentence (death penalty, for example), and certain things regarding the rules governing the jury’s decision (reasonable doubt, weighing witness testimony, etc.).
We criminal lawyers don’t get to say what we want to a jury. We don’t get to tell the truth. We don’t get to tell the jury that our client will go to prison for a minimum of three years for possessing $100 worth of pills. No free speech whatsoever. But, leave it to some prosecutors to attempt to circumvent the rules of evidence, and try to sneak a few lies in the back door. And, telling the jury lies is exactly what today’s case study involves (ok, maybe the term “lie” is too strong of a word, read on, and you decide).

In Mitchell v. State, the defendant was convicted of animal cruelty. 118 So. 3d 295 (Fla. 3d DCA 2013). You’re not going to like the facts of this case, but that’s never stopped me from laying it out there. Mitchell and a few friends were eating some steaks, drinking some beer. So far, so good. One friend fed Mitchell’s dog a piece of steak. Mitchell freaked out, and attempted to grab the steak back from the dog. Good luck with that, right? Right. The dog bit Mitchell–after all, we’re talking about steak here, how did you expect the dog to react?

The testimony from Mitchell’s friend indicates that after being bit, Mitchell picked up the dog, slammed him to the ground, “dropped his knee onto the dog’s chest, and punched the dog.” Id. Mitchell’s version of the story was that he tripped over the dog. Hum. Really? Mitchell expected the jury to believe that? I guess the State anticipated the classic “I tripped” defense, so they brought in two veterinarians. Their examination revealed that “the dog suffered a collapsed lung, fluid in the lungs, and several fractured ribs,” — the injuries were not the result of someone tripping over the dog. If you were on that jury and heard the State’s case first, would you believe one iota of the tripped over the dog story? And, the jury wasn’t buying it either. Mitchell received 9 months in jail as a condition of 5 years probation.

You would think this conviction was a pretty clean cut affair, but I left out the rules violations of the prosecution during closing arguments. Just as we discussed a few paragraphs up, our courtrooms have rules. One basic rule is that you cannot mischaracterize the law. We all know, and every prosecutor should know, that the State must prove their case beyond all reasonable doubt. As such, the prosecutor cannot argue to the jury that their burden is something different than this basic rule. So, I’m going to give you exactly what the prosecutor said to the jury (and paraphrase everyone else) in closing arguments:

PROSECUTOR: What the defense is asking you to do is to believe that every single witness in this case is a liar, because that’s what would have to happen for this man over here to be not guilty. Every single person has to be a liar except him.

DEFENSE ATTORNEY: Objection, improper argument, confusing the burden.

JUDGE: Overruled.

But the prosecutor couldn’t help it, and continued as follows:

PROSECUTOR: You would have to take the evidence that Doctor Carro gave you, find that she is wrong. You would have to then also take what Gary Pitterman (friend) said and that what he said didn’t happen at all, because you can’t have both what the defendant said and what Mr. Pitterman said.


JUDGE: Overruled.

The problem is clear. The defense does not have ANY burden in a criminal case. The defense does NOT have to prove anyone is lying in order for the jury to return a not guilty verdict. A “not guilty” verdict is essentially a “not proven” verdict. And, of course, the duty to prove the lawsuit rests with the plaintiff, the State of Florida. The court reversed the felony conviction in this case, reasoning that:

“the prosecutor might have been attempting to argue that defendant’s version of events was contradicted by much of the testimony presented by the other witnesses. This line of argument is, of course, perfectly appropriate. Where the prosecutor erred, however, was by framing the argument in a manner that improperly shifted the burden of proof by implying that the defendant had a burden to establish that the State’s witnesses were lying. In doing so, the prosecutor crossed the line of permissible argument into an erroneous statement of the government’s burden of proof. . .[the prosecutor’s statements] implied that the defendant had a burden to prove that all the State’s witnesses were lying in order to establish his innocence. But the defendant has no such burden.” Id.

The hard part for some prosecutors to understand is that we can all find witnesses for all sorts of events in life. Just because I believe them, or you believe them, doesn’t mean that the issue is resolved beyond every reasonable doubt. I can parade hundreds of alien abductees in front of a jury who will tell you about their time in a space ship–but that doesn’t mean I’ve proven the case beyond every reasonable doubt. Witness testimony is powerful. Witness testimony can be believed or not, but presenting several witnesses is no guarantee that some fact has been proven beyond every reasonable doubt. The court made one more interesting point about the prosecutor’s obsession with the crazy notion that the defense had to show the State witnesses were lying:

“the burden-shifting language is particularly problematic because the prosecutor’s comments indicated that Mitchell had a burden to disprove testimony that was not even in dispute. There was no dispute regarding the veracity of the statements of most of the State’s witnesses. For example, Mitchell did not challenge the police officers’ testimony that they conducted an investigation. Nor did Mitchell contest Dr. Carro’s testimony that the dog suffered a collapsed lung and fractured ribs as a result of the incident. The disputed factual issue concerned whether Mitchell had intentionally and maliciously inflicted these injuries on the animal. Given the State’s burden to prove its case beyond a reasonable doubt, the members of the jury could have believed the testimony of the police officers and the testimony of the veterinarians and still found Mitchell not guilty because they believed Mitchell’s version of the events rather than Pitterman’s (friend).” Id at 297-298.

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