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An editorial by the Connecticut Law Tribune published on July 17, 2013 uses the Santiago case (which we previously reported on here) to take aim at prosecutors’ failures to comply with their ethical obligation during closing arguments at trial. In State of Connecticut v. Santiago, the Connecticut Appellate Court found that the prosecutor in the case had used improper arguments in both the closing and rebuttal, violating a court order and potentially inflaming the passions of the jury. The Court cited six other cases in which Assistant State’s Attorney Terence Marianai Jr. of the Waterbury State Attorney’s office had committed similar misconduct in the past.

In its editorial this month, the Tribune begins by explaining the significance of this type of misconduct:

Summation is a critical stage of criminal proceedings and can be crucial to swinging a case one way or the other. It is not acceptable that on too many occasions prosecutors step over the ethics line in the zealous advocacy to convict.

The Tribune’s take on what is required to address this widespread problem is to make prosecutors read the appellate case decisions released each week and attend more trainings on ethical behavior — or at least more effective ones.

But implicitly, the Tribune suggests that prosecutors offices are not best placed to police their own employees’ behavior. Rather, courts and defense attorneys have to take responsibility if prosecutorial misconduct is to going to be deterred.

It argues that by routinely finding harmless error in cases where prosecutors have violated their ethical obligations, and renaming the misconduct as mere “impropriety,” courts are failing to demonstrate that this type of behavior is unacceptable.

What’s to prevent a prosecutor from taking a calculated risk in crossing the line of acceptable conduct when our appellate courts on a regular basis give a wink and a nod to this kind of improper behavior? Maybe it’s time for grievances to be filed where certain kinds of misconduct, like that detailed in the Santiago case is documented.

The Tribune‘s criticism is echoed in one of our previous posts where we discuss harmless error findings and the courts’ reluctance to publish prosecutors’ names in their opinions as factors that undercut deterrence. The editorial notes that defense attorneys who fail to object to improper argument negatively contribute to appellate court findings of harmless error. 

Therefore, the Tribune argues, prosecutors, courts and defense counsel all have a role to play in preventing improper argument and prosecutorial misconduct more broadly.

Santiago should be a wake-up call to all of us that this critical stage of a criminal jury trial must be fixed. Justice and fairness demand it.

For more information about how to follow the Tribune’s suggestion and file a grievance in your state, see “How to File a Bar Complaint.”

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