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The Maine Supreme Judicial Court this week found a prosecutor, who is now a district judge, committed misconduct by making improper arguments in a 2012 murder trial, but let the conviction stand despite the prosecutor’s behavior.

According to the Bangor Daily News, Buddy Robinson of Androscoggin County is serving a 55 year sentence in connection with the death of his neighbor in 2009. At trial, in closing arguments, the man who prosecuted him, then Assistant Attorney General Andrew Benson, made the following statement:

I’ve been a criminal prosecutor here in the state of Maine pretty much for all of the last 25 years, the last 13 doing exclusively homicide trials for the attorney general’s office, and, strangely enough, when it comes to trial, I’ve always been wrong. I’m always wrong. We never get the right person. And, as [defense counsel] told you in his opening statement, once again, we’ve made a mistake. We’ve gotten the wrong person.

During his rebuttal of the closing argument made by Robinson’s defense attorney, Benson underscored his point, saying, “Well, as I told you at the beginning of the first part of my closing argument, I’m wrong again. We’re always wrong. We never get it right.”

Noting that “a prosecutor’s argument is improper if it is designed to awaken in the jury a suspicion that the defenses [are] merely a subterfuge employed by the defendant to evade responsibility for his acts,” and that even in the less rule-bound area of opening and closing arguments, a prosecutor’s statements must be “strictly confined to the domain of facts in evidence,” the high court held:

The prosecutor’s argument to the jury violated these prohibitions. It consisted of an effort by the prosecutor to present himself as the voice of experience and to then assure the jury that the same defense raised here has been fruitless in other cases and therefore also should be fruitless in this case. Such an appeal to the jurors consists of an improper call for them to predicate a verdict based on information that goes beyond the evidence presented to them,and it tended to improperly diminish the stature of Robinson’s alternative suspect defense seeking to raise a reasonable doubt about the allegation that he was the perpetrator.

Finding, however, that the strength of the State’s case against Robinson was sufficiently compelling that Robinson could not show “a reasonable probability” that Benson’s misconduct had “affected the outcome of the proceeding,” the court affirmed the conviction.

In the annals of prosecutorial misconduct, neither the behavior of Andrew Benson, nor the outcome of Robinson’s appeal is particularly remarkable. A court holds a prosecutor in some way violated a defendant’s constitutional right to a fair trial; it further finds the violation had no effect on the outcome; and it concludes by leaving the conviction in place. These decisions come down all the time.

But what is worth noting, interestingly enough, is a change in tone in the local press coverage of the event. The court reporter for the Bangor Daily News, Judy Harrison, who wrote the article describing the decision, not only engages in no disparagement of Robinson’s appeal, despite what, indeed, seems to be compelling evidence against him. Rather, she goes on to question if the then-prosecutor and now Judge Benson, will face any consequences for his misconduct, regardless of the fact that Robinson’s sentence has now been upheld.

What, if any, impact the court’s finding would have on Benson’s judicial career could not be determined Tuesday afternoon…The Board of Overseers of the Bar would consider any complaint, if one were to be made, over Benson’s behavior as a prosecutor. Since he is now a judge, the matter might be considered moot. It is highly unlikely the Committee on Judicial Responsibility and Disability, which is overseen by the Maine Supreme Judicial Court, would consider a complaint over Benson’s conduct as a prosecutor. The justices’ findings would not be considered a complaint. Robinson or his attorney would have to file a complaint for either the board or the committee to consider it, according to the separate rules that govern both bodies.

As statements of fact, these are, once again, unremarkable. But as an example of how coverage of prosecutors has changed even in the last few years, it is a telling example of a spreading awareness that simply because a court finds that a prosecutor’s behavior does not warrant throwing out a conviction, that man or woman has still been found by a court of law to have violated his or her legal obligations and ethical duties to the profession.

That such complaints are still rarely filed, and that the structure of incentives, both for prosecutors who are not punished by courts, and for defendants and defense attorneys who are not focused on bar complaints, still tilts in prosecutors’ favor is not to be denied. But the first step in changing these incentives and the behavior they condone is for the press to recognize that avenues for further action do exist.

Simply put, we need more court reporters like Judy Harrison asking what consequences prosecutors, and those who are now judges, will face when courts make clear declarations that they have denied people their rights and violated the cannons of legal ethics.

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