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Update:

The Florida Supreme Court has reprimanded a Volusia county prosecutor who recently reached a plea agreement with the state bar association over his misconduct in a 2014 felony murder trial.

The conviction that Assistant State Attorney J. Ryan Will had won against Jerry Roy Crew was overturned last year after findings that Will’s closing arguments were rife with “egregious” misrepresentations of the evidence and highly derogatory references to the defendant as a “crackhead.” See our original post below for a full account of the appeals court decision.

According to the Daytona Beach News Journal:

The Florida Supreme Court reprimanded 7th Judicial Circuit Assistant State Attorney J. Ryan Will in part for repeatedly calling a defendant a “crackhead” during a murder trial. The state Supreme Court approved on Dec. 31 a conditional guilty plea from Will, who reached the agreement with The Florida Bar which investigated the complaint filed by defendant 59-year-old Jerry Roy Crew. A public reprimand will be published against Will in the Southern Reporter, which compiles appellate court opinions. Will must also pay more than $2,000 to the Florida Bar to cover its costs in the investigation.

Crew, who had been sentenced to 30 years in prison on the felony murder charge has subsequently pled to a lesser charge and is now out of prison.

Original Post:

A man convicted of felony murder for apparently cowering in a motel bathroom while one of his drug dealer’s associates was shot in a parking lot in Volusia County, has had his conviction reversed by a Florida appeals court on the grounds of prosecutorial misconduct.  You can read a useful summary of the case here.

“This case reads like a primer on what not to do during closing arguments,” the concurring judge in Crew v. Florida wrote.  “The errors committed by the prosecutor are so numerous and so egregious, and the comments directed at opposing counsel are so unprofessional, I am amazed it was allowed to occur unchecked.”

In reversing and granting a new trial, the 5th District Court of Appeals noted several lowlights of prosecutor Ryan Will’s comportment during his summation:

  • “clearly and continuously” misrepresenting the evidence by arguing, without any support from the record, that the defendant “would share in the proceeds” of the robbery that resulted in the killing.
  • “abandon[ing] any semblance of professionalism” when he demeaned the defendant by calling him “our favorite crackhead,” “crackhead little brain,” and describing his “beady little crackhead eyes glowing in that shower.”
  • “Denigrating” and “sarcastic” remarks about the defense counsel, using his first name only, and mocking him for seeking “the lowest offense the law will allow” for “his poor, misunderstood client.”
  • “Urging the jury to consider improper grounds” for conviction when he invoked the victim’s family, and told the jurors, “Don’t spit in this family’s face.”

Interestingly, however, when the national media, in the form of NBC News, swept its fleeting eye across the case back in August, it ran it under the headline, “Florida Prosecutor’s ‘Crackhead’ Insults Get Murder Conviction Tossed.”  This is a useful reminder that while there may well be a sea change underway in the media’s and the public’s willingness to consider the idea that prosecutors aren’t infallible, their clearly documented legal and ethical violations are still routinely trivialized when the men and women being prosecuted are people we are not supposed to care about.

NBC’s headline does its ideological work with great concision.  A 57 year-old man addicted to cocaine and hiding in a bathroom becomes a murderer, while violating Florida’s laws regarding fair trials is reduced to the implicitly trivial (and perhaps even laudable?) matter of insulting a crackhead.  It’s a headline that’s been written, in one form or another, for the last thirty years: lowlife gets off because of stupid legal procedure.  And it’s still being written.

What is rare about Crew v. Florida isn’t the prosecutorial misconduct the main opinion describes, but rather the incisive commentary of the concurrence by Judge Wendy Berger (appointed by Jeb Bush to the circuit court, and Rick Scott to the 5th District).  After describing prosecutor Ryan Will’s conduct as “a primer” on improper argument, she goes on to write:

Although the trial judge in the instant case properly sustained objections by defense counsel, not once was the jury instructed to disregard the improper comments, nor was the prosecutor called to task for his conduct.  In my view, [a judge] sitting silent absent an objection by opposing counsel, tacitly, albeit unintentionally, condones such conduct…[I]t is no longer—if it ever was—acceptable for the judiciary to act simply as a fight promoter, who supplies an arena in which parties may fight it out on unseemly terms of their own choosing…Judges have a responsibility to protect jurors from improper closing arguments.  Failing to do so demeans the system of justice we serve to protect.

This case isn’t about exoneration, or anyone spending decades behind bars for crimes they didn’t commit.  It’s a routine drug-war prosecution in Daytona, yet it captures, in capsule form, where we still are.

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