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In July we highlighted a thoughtful editorial by the Connecticut Law Tribune which characterized the Connecticut Appellate Court’s reversal in State of Connecticut v. Santiago as a wake-up call about the need for greater accountability in ensuring closing arguments are handled ethically by prosecutors.

In Santiago, Assistant State’s Attorney Terence Marianai Jr. of the Waterbury State Attorney’s office was found to have engaged in improper argument during his closing in at least 6 different cases cited by the Connecticut Appellate Court. The Court said in its ruling that it was overturning Mr. Santiago’s conviction in an effort to deter Marianai from continuing to carry out this sort of misconduct.

On November 19, the Connecticut Supreme Court will officially release its opinion in State v. Michael G. Maguire, another case in which a Danbury assistant state’s attorney stepped over the line in closing argument. The Supreme Court vacated Mr. Maguire’s conviction for risk of injury to a child and sexual assault in the fourth degree because a deputy assistant state’s attorney made improper statements during her rebuttal closing argument.

In Maguire, the prosecutor repeatedly asserted that “the defendant and defense counsel were asking the jury to ‘condone child abuse’ and and to find ‘that…child abuse that happens in secret is legal,’ and, further, that defense counsel was lying when he stated otherwise.” The Court found that these tactics were “highly improper and intended not only to appeal to the jurors’ emotions but also to demeand the defendant and defense counsel in the eyes of the jurors.”

The Tribune‘s criticized Connecticut appellate courts for referring to such behavior as an “impropriety” instead of misconduct, as the Supreme Court does in this case. The Tribune warns that leaving prosecutors unnamed in opinions, watering down language to describe the severity of the prosecutor’s offense, and dismissing misconduct as “harmless error” are all ways that courts undercut their own authority to demonstrate that such conduct is unacceptable.

Though the Supreme Court uses the word ‘impropriety’ in Maguire and doesn’t name the prosecutor involved, it nonetheless takes the prosecutor’s misdeeds seriously:

“In light of the foregoing, we are puzzled by the state’s contention that the prosecutor’s remarks, when viewed in context, constituted a fair response to defense counsel’s closing argument. In fact, what the prosecutor did was to seize upon certain remarks that defense counsel had made in his argument to the jury and to twist them into a disparaging refrain, which she then repeated over and over for dramatic effect. Indeed, short of an explicit plea by defense counsel for the jury to approve of or ignore criminal behavior, we are hard- pressed to imagine any defense argument that properly could be described by the state in the provocative terms that the prosecutor used in the present case.”

Furthermore, it does not dismiss her conduct as mere “harmless error”. The Court explains what harm is done by a prosecutor engaging in this sort of closing argument and then grants a new trial:

“The prosecutor’s repeated assertions that the defendant and defense counsel were asking the jury to condone child abuse was particularly harmful because, in a close case, the jurors may have felt compelled to find the defendant guilty, lest they be viewed by the state as condoning such contemptible conduct. The defendant therefore is entitled to a new trial.”

While the courts in Connecticut could go further in stamping out this sort of misconduct (by naming prosecutors in opinions, etc.) the Connecticut Supreme Court’s intolerance of the prosecutor’s conduct in Maguire may be an encouraging sign of things to come.

Read the Court’s opinion here.

Follow The Open File on Twitter: @openfilesite.



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