In a prime example of the social costs of what the Florida Supreme Court last week called prosecutorial “arrogance,” that court has overturned the murder conviction and death sentence of a Pinellas County man, citing multiple instances of misconduct by a prosecutor who has repeatedly “pushed the envelope” of proper argument, undermining the state’s own case.
According to the Tampa Bay Times, Patrick A. Evans, a 48 year old business executive, was convicted of first degree murder in the 2008 shooting deaths of his ex-wife, Elizabeth Evans, and her boyfriend, Gerald Taylor.
The key piece of evidence at trial was the recording of a 911 call to Elizabeth Evans’ condominium. Someone at the residence had called 911 but hung up before saying anything. The dispatcher called the number back, the phone was picked up, but no one spoke into the receiver. The dispatcher remained on the line, recording a brief argument in the bedroom of the condo followed by two gunshots.
At trial, prosecutors put the lead detective in the case, Edward Judy, on the stand to testify that the voice of the man apparently holding the gun in the recording was the voice of Patrick Evans. Evans objected to allowing the chief investigating officer, who had no prior knowledge of Evans, to offer voice identification testimony to the jury, but the judge overruled the objection, saying it wouldn’t be prejudicial because other witnesses had also identified the voice as Evans’.
The Florida Supreme Court disagreed, holding that the detective’s testimony “lent an aura of expertise to the voice identification precisely because of his status as the law enforcement officer in charge of the investigation, adding the imprimatur of his belief in the defendant’s guilt.” By “invading the province of the jury” to find the facts in the case, it crossed the line into impermissible testimony.
The court further found that then-assistant state attorney James Loughery had improperly insinuated during his cross examination of Evans that Evans had hired a private investigator to follow his ex-wife. No such evidence was presented at trial. The court held that Loughery’s insinuation was prejudicial, particularly regarding the alleged premeditation of the murders, which was central in the sentencing phase.
The decision in Evans vs. State reserves it’s sharpest criticism of Loughery for his comportment during his closing argument of the penalty phase of the trial. The court held that Loughery:
- Misstated the law of first and second-degree murder, suggesting the jury couldn’t find manslaughter due to “heat of passion.”
- Improperly suggested Evans was wasting the time of the court and the jury by exercising his constitutional right to a trial, given the evidence against him.
- Relied on facts not in evidence by saying murders are more often committed by family members.
- Made improper arguments denigrating the defense and its theory of the crime by saying, “I mean, only in a world populated by defense attorneys would that be true,” and “I mean, talk about bad TV. That wouldn’t even make it on TV.”
Cumulatively, the court found, the detective’s improper testimony, the prosecutor’s prejudicial insinuation that Evans’ had hired a private investigator, despite the absence of any evidence to support the claim, and his multiple improper comments in closing arguments constituted reversible error.
All of this is bad enough. But what makes the case particularly notable is the court singling out Loughery’s past behavior. In a remarkable footnote, the court goes out of its way to highlight what it calls Loughery’s “arrogance.”
The prosecutor who presented the rebuttal closing statement, James Loughery, has “pushed the envelope” in other cases. Mr. Loughery was previously chided…for his arrogance and his inappropriate comments. Mr. Loughery repeatedly made improper statements during closing argument [in another trial], including the reference to a defense theory as “desperate.” The trial judge felt that Mr. Loughery was challenging him to declare a mistrial. When the trial judge questioned Mr. Loughery on this point, he responded:“Let me explain this. I certainly am not [attempting to have a mistrial declared], okay? And I hate to say this, but I will. You know, I have tried a lot of cases. I’ve never been reversed as a prosecutor for misconduct. Never. I’ve won most of my cases. I never had a conviction reversed. This is no different than things I might say in other cases. Now, I don’ t know what your experience is with the prosecutors you’ve watched. Maybe they’re a bunch of dishrags. I don’t know. But what I’m doing is not improper, okay?”
Reached by phone Thursday, Loughery said: “As a prosecutor, I don’t think it’s my duty to acquiesce to absurdities, which is apparently what the court is asking us to do.”
David Parry, the attorney who represented Evans during the trial, said he was pleased to learn of the court’s decision. “There’s so many easier ways to do a case where you don’t have to degrade the defense and the defendants,” he said. “I’m glad that the court was able to look at it.”
The evidence in the case, minus Loughery’s misconduct, may or may not have been sufficient to convince a jury to convict and to sentence Evans to death. But because of a prosecutor’s “arrogance” and overreaching, the judicial system, and thus ultimately the taxpayers of Florida will have to try Evans again in order to find out.
The case is a useful, if sad reminder, then, that in addition to the violation of the constitutional rights of defendants, prosecutorial misconduct imposes a heavy expense on the very people that prosecutors are sworn to protect.