PROSECUTORIAL MISCONDUCT IN THE PENALTY PHASE CLOSING ARGUMENT OF A CAPITAL CASE


Florida Defender Magainze, Summer 2007


by David A. Brener, Esq.


In Florida, both the state and the defense in the penalty phase of a capital trial have the right to make one closing argument. The State goes first, and if defense counsel chooses to make an argument, he or she argues last. This is true regardless of whether the defense presented witnesses, and despite the recent change in the law making the defense “sandwiched” between the State’s initial and rebuttal arguments in the guilt/innocence phase.


The Supreme Court of Florida, to which all cases involving a death sentence are automatically appealed, has become increasingly willing to reverse a capital case based on improper prosecutorial argument in the penalty phase. An examination of the most common types of improper arguments that prosecutors make, and the relevant authorities discussing the issue, is therefore essential for capital defense counsel.


At the outset, it should be noted that prosecutors, in the context of capital cases, are normally not in any need of resorting to improper argument, as they usually have a confession, a witness who places the defendant at the crime scene, forensic evidence, and of course, a dead body. This evidence, along with the presence of at least one aggravating circumstance (which is required in order for the State to even seek the death penalty), makes not only conviction for first degree murder probable, but also makes a death recommendation more than a realistic possibility. Given the often overwhelming nature of the evidence, the supreme court has criticized the seemingly foolish risks a prosecutor takes when he or she gambles with improper arguments in a capital case. Nevertheless, as stated by one of Florida’s most knowledgeable judges in the death penalty arena, “[w]ith all of this evidence and testimony, … prosecutors [sometimes still] insist on jeopardizing a sure conviction with a reversal years later because of some unnecessary, vindictive, or otherwise unprofessional argument. Immaturity? Lake of training? It is hard to tell. However, trial judges have an affirmative responsibility to insist on final arguments remaining within ethical and evidentiary limits and - they risk reversal if they fail.” Yet, some prosecutors insist on walking a thin line.


Prosecutors are members of the Bar and, like all other Florida lawyers, are subject to the Rules of Professional Conduct. In addition, prosecutors have “special responsibilities” and must ensure that their role remains “that of a minister of justice, and not simply that of an advocate.” Accordingly, a prosecutor may not:


“in trial, allude to any matter [he or she] does not reasonably believe is relevant or that will not be supported by admissible evidence [or] assert personal knowledge of facts in issue … or state a personal opinion as to the justness of a cause, the credibility of a witness … or the guilt or innocence of the accused.”


The failure to comply with the ethical responsibilities and evidence rules applicable to trials may subject an offending prosecutor to reversal of a conviction or death sentence, sanctions, including contempt of court, and in some cases, bar disciplinary proceedings.


Instances of improper prosecutorial closing arguments can be divided into several different categories. Arguments which are unsupported by the evidence, which are based on personal opinions, or which claim to be based on personal knowledge of the prosecutor are surprisingly common, and are clearly improper.


Another improper argument which prosecutors sometimes make during closing argument occurs when they ask the jury to be the “conscience of the community”, or to “send a message” to the community. In Bertolotti v. State, 476 So.2d 130 (Fla. 1985), the court ruled that asking the jury to consider the message its verdict would signal to the community was improper and an obvious attempt to appeal to the fears and emotions of the jury.


Similarly, in Campbell v. State, 679 So.2d 720 (Fla. 1996), the court held that the argument that the death penalty is a message for those who choose to violate the sanctity of human life is outside the proper scope of the jury’s deliberations, and violates the duty of the prosecutor to seek justice.


The prosecution may not attempt to minimize or diminish the jury’s sense of responsibility for their decision. Currently in Florida, the jury makes a recommendation, which does not have to be unanimous, and which can be made by a simple majority. The judge makes the final decision as to the penalty. However, the court must give the recommendation “great weight”, and cannot override a life recommendation unless no reasonable person could differ that the facts in aggravation and mitigation compel a sentence of death.


Thus, when the prosecutor or the judge make statements that diminish the jury’s sense of responsibility for the decision, such as telling the jury that the judge may disregard their recommendation, or that the supreme court will review their decision on appeal, the argument is improper, as it constitutes what is referred to as Caldwell error.


The death penalty is reserved for the most aggravated and least mitigated of murders. The twelve-person penalty phase jury hears evidence to determine the presence of statutory aggravators, and statutory and non-statutory mitigators. There are currently fifteen (15) potential statutory aggravators, and eight (8) statutory mitigators, including a catch-all mitigator encompassing “any other factors in the defendant’s background that would mitigate against imposition of the death penalty.” Aggravating factors must be proven beyond a reasonable doubt, while the jury need only be “reasonably convinced” of a mitigator in order to find it exists. Pursuant to a weighing process where the jury must determine if the mitigators outweigh the aggravators, it makes a recommendation as to whether the defendant should be sentenced to life or death.


In Florida, there are no non-statutory aggravating factors. It is therefore improper for the prosecutor to argue factors that are not listed in the statute, or to refer to a mitigator as an aggravator and thereby denigrate the mitigation.


In Pope v. State, 441 So.2d 1073 (Fla. 1983), the prosecutor inferred that the defendant had no remorse for his actions. The supreme court held that lack of remorse is not an aggravating factor, as it is not listed in the statute. Lack of remorse may properly be considered as rebuttal to mitigation evidence offered in the form of evidence of rehabilitation or remorse on behalf of the defendant, but it may not be argued as an aggravator. If the defendant does not present evidence of remorse, the state may not illicit lack of remorse, and may not argue it to the jury.


In Walker v. State, 707 So.2d 300 (Fla. 1997), the prosecutor argued that the mental mitigation evidence offered by the defense was actually evidence in aggravation of the offense, raising the specter of the future dangerousness of the defendant. Argument by the prosecutor regarding the defendant’s alleged future dangerousness, whether in the form of mental health problems, drug addiction, or propensity to kill again, is highly prejudicial, and there is simply no place in the justice system for such arguments.


Equally improper are arguments that appeal to emotions, fears, or the sympathy of the jury, as are arguments which extol the virtues of recommending death as the jury’s public or patriotic duty. In Garon v. State, 528 So.2d 353 (Fla. 1988), the prosecutor suggested that it was the “sworn duty” of the jurors to impose death, while in King v. State, 623 So. 2d 486 (Fla. 1993), the prosecutor told the jury it would be “cooperating with evil” if it voted for life, and inferred that voting for death was their moral obligation.


In Ruiz v. State, 743 So.2d 1 (Fla. 1999), the prosecutor used a more subtle approach, personalizing herself and her family and juxtaposing her family’s noble service with the actions of the convicted defendant, which gave rise to an assertion that it was the jury’s moral or patriotic duty to condemn the defendant to death.


Asking the jury to imagine the pain the victim suffered and inviting the jurors to speculate about what penalty the victim would want, are, among other things, improper appeals to sympathy. Repeatedly using the word “executed” and repeatedly characterizing the defendant as “vicious” and “violent” and “brutal”, are improper appeals to emotion and fear. Efforts to demonize and dehumanize with “vituperative and pejorative characterizations of the defendant” may result in reversal.


Arguments which invite the jury to give the defendant the same amount of mercy which he gave the victim, or which ask the jury to show him “no pity”, are “blatantly impermissible.” This type of argument is a “clear example of improper prosecutorial misconduct, which constitutes error and will not be tolerated.“ The jury has the discretion to show mercy, and emotional attempts to preclude the exercise of that discretion are impermissible.


The prosecutor is not permitted to disparage opposing counsel, the defendant, or defense witnesses. In addition, the prosecutor may not denigrate the defense or the type of mitigation presented.


Despite the references to capital punishment in the Bible, religious arguments have no place in the penalty phase of a capital trial. Argument “which invokes religion can easily cross the boundary of proper argument and become prejudicial argument.” Moreover, religious arguments rely on religious authority which are extra-judicial and not in conformity with the instructions given by the court. “The primary vice in referring to the Bible and other religious authority is that such argument may diminish the jury’s sense of responsibility for its verdict and imply that another, higher law, should be applied in capital cases, displacing the law in the court’s instructions.” Counsel should avoid references to the Bible as justifying capital punishment.


As in any other criminal case, “Golden Rule” arguments, where the jury is asked to place themselves in the shoes of the victim, are highly improper in the penalty phase. While the typical “Golden Rule” argument invites the jury to imagine the suffering of the victim, more subtle arguments, such as inviting the jury to be at the crime scene during the homicide, or to listen to the prosecutor’s imitation of the victim’s imaginary dying words, are also impermissible. Contrasting the activities that the defendant will be able to do if sentenced to life, with the things the victim can no longer do as a result of the homicide, is also improper as both a modified “Golden Rule” argument and an attempt to inflame the passions and emotions of the jury.


The prosecutor may not comment on the defendant’s right to remain silent in the penalty phase, as to do so penalizes him for the exercise of that right, and may infer that his silence amounts to a lack of remorse, an improper aggravating factor.


Florida allows for so-called “victim impact” evidence. Once the prosecutor has provided evidence of one or more aggravating factors, the state may introduce and subsequently argue such evidence. Victim impact evidence is designed to demonstrate the victim’s uniqueness as an individual. Opinions and characteristics about the appropriate penalty, about the defendant, and about the crime are not permitted to be elicited or argued as part of victim impact. Victim impact evidence is not an aggravator, and should not become a feature of the case. Comments by the prosecutor, in which the life of the victim is compared to the life of the defendant, may be “using victim impact evidence as a non-statutory aggravator” and are objectionable.


Finally, the prosecution may not, under any circumstances, erroneously inform the jury that the death penalty is mandatory or required. The court has said repeatedly that “a jury is neither compelled nor required to recommend death where the aggravating factors outweigh the mitigating factors.” Although a recommendation for the death penalty would be permissible in such a case, the jury is always free to recommend mercy. As stated by the Florida Supreme Court in Alvord v. State:



Certain factual situations may warrant the infliction of capital punishment,


but nevertheless, would not prevent either the trial jury, the trial judge, or


this Court from exercising reasoned judgment in reducing the sentence to life imprisonment.


The role of counsel during closing argument is “to assist the jury in analyzing, evaluating, and applying the evidence” and to “explicate those inferences which may reasonably be drawn from the evidence.” Although an objective and dispassionate proceeding may sometimes be dry and difficult to maintain, it is far better than a court of justice ruled by emotion. Prosecutorial comments which inject emotion and fear into the deliberative process, or incite the jury to disregard the law, pass the “bounds of zealous advocacy and enter into the forbidden zone of prosecutorial misconduct.” In their zeal to assure that a defendant accused of a heinous crime is held to answer, prosecutors must resist the temptation to “win” a death recommendation, and be ever mindful of their duty to seek justice.



# David A. Brener is a Fort Myers criminal defense attorney, who concentrates his practice on serious felonies and homicides. He is chief counsel for the lead Defendant in the “Cash Feenz” murder case, and was co-counsel in the double murder case of Jeremy Chapman, who recently pled to life in prison without parole in exchange for a waiver of the death penalty.


# Florida Rule of Criminal Procedure 3.780.


# Id..


# See Florida Rule Criminal Procedure 3.25 (2007).


# Florida Rule of Appellate Procedure 9.030; Florida statute section 925.035.


# Ruiz v. State, 743 So.2d 1 (Fla. 1999).

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