Error XI - Prosecutorial Misconduct

[jane]

I'm really glad to see this one included. As I re-read the Opening Statement, Closing and Rebuttal Arguments, I'm astonished at the number of outright lies this man told.

XI. THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT
AND VIOLATED DUE PROCESS BY URGING THE JURY TO REJECT
THE DEFENSE THEORY AND CONVICT MR. PETERSON OF FIRST
DEGREE MURDER BECAUSE DEFENSE COUNSEL DID NOT
PRESENT DEMONSTRATIVE EVIDENCE SHOWING THE
INSTABILITY OF MR. PETERSON’S BOAT WHEN, IN FACT, THE
TRIAL COURT HAD EXCLUDED THIS VERY EVIDENCE AT THE
PROSECUTOR’S OWN REQUEST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
A. The Relevant Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
B. The Prosecutor’s Arguments Constituted Gross Misconduct And
Violated Mr. Peterson’s Federal Due Process Rights To A Fair Trial . . 345
C. The Merits Of This Claim Are Properly Before This Court . . . . . . . . . . 349

Excerpt from the brief:
When a prosecutor’s closing argument “so infect[s] the trial with unfairness as to
make the resulting conviction a denial of due process,” he commits misconduct. (Darden
v. Wainwright, supra, 477 U.S. at p. 170, 181. Of course, one of the hallmarks of due
process is providing a defendant a fair opportunity to meet the state’s case against him.
(Crane v. Kentucky (1986) 476 U.S. 683, 690.)
Pursuant to this principle, due process precludes a prosecutor from asking a jury to
convict a defendant because he failed to present certain evidence without having given
the defendant a full opportunity to present that evidence. (See Simmons v. South Carolina
(1994) 512 U.S. 154.) Applying the same principle, due process precludes a prosecutor
from asking a jury to convict a defendant because he has failed to introduce evidence
which the court has specifically excluded on the prosecution’s own motion. (Paxton v.
Ward (10th Cir. 1999) 199 F.3d 1197, 1217-1218 ; United States v. Ebens (6th Cir. 1986)
346
800 F.2d 1422, 1440-1441, abrogated on other grounds, Huddleston v. United States
(1988) 485 U.S. 681; United States v. Toney (6th Cir. 1979) 599 F.2d 787, 790-791; State
v. Bass (N.C. 1996) 465 S.E.2d 334, 337-338; People v. Daggett (1990) 225 Cal.App.3d
751, 757-758; People v. Varona (1983) 143 Cal.App.3d 566, 570. See United States v.
Cruz-Garcia (9th Cir. 2003) 344 F.3d 951, 957 n.5; Franklin v. Duncan (N.D. Cal. 1995)
884 F.Supp. 1435, 1454 n.19.) Because there is no way for a defendant to respond to
such an argument, such arguments by prosecutors violate a defendant’s “constitutional
rights . . . to rebut evidence and argument used against him . . . .” (Paxton v. Ward,
supra, 199 F.3d at p. 1218.) Indeed, this type of argument is nothing short of “foul play.”
(United States v. Toney, supra, 599 F.2d at p. 790.)