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Deshone Herbin was convicted of first-degree burglary, three counts of first-degree kidnapping and four-counts of first-degree robbery in 2011. Last week, those convictions were thrown out by the Washington Court of Appeals due to prosecutorial misconduct.

The Bellingham Herald reports:

[F]ormer Thurston County Deputy Prosecuting Attorney David Bruneau committed misconduct in presenting a PowerPoint slide to the jury during closing argument depicting the defendant’s mug shot with the word “guilty” superimposed on the photograph.

According to The Herald, the Court wrote,

Because the prosecutor’s misconduct in presenting highly inflammatory slides containing Herbin’s altered booking photograph had a substantial likelihood of affecting the jury verdict that was incurable by a jury instruction, we reverse Herbin’s remaining convictions and remand for a new trial.

The  Thurston County Chief Criminal Deputy Prosecuting Attorney said last Thursday that his office intends to retry Herbin, disagreeing with the Court of Appeals that Bruneau’s actions constituted misconduct on the grounds that juries are sophisticated enough to understand that such materials are not evidence.

The Herald further reports that another Washington defendant, Robert Maddaus, has appealed his 2011 murder conviction to the Court of Appeals on the same basis as Herbin. The Court’s ruling in that case is pending.

UPDATE: Here is a bit more detail about the improper PowerPoint slides in State of Washington v. Herbin:

The first slide contains the words “STATE OF WASHINGTON vs.” in a large font written above what appears to be Herbin’s booking photograph with his name written below the photograph…. On that same slide below Herbins’ name, the words “GUILTY AS CHARGED” are written within quotation marks…. [Another slide] contains Herbins’ booking photograph with the word “GUILTY” written across his face in a large font…. In this same slide, Herbin’s photograph and the word “GUILTY” are circled and several arrows are pointing at the encircled photograph with various text written at the start of each arrow describing various pieces of evidence such as “Identified by Nick Oatfield,” and “Ford Explorer at crime scene.”


The court opinion can be found here.


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