Last week the conviction in a high profile South Florida capital murder case that dates back to 1990 was vacated by the state supreme court owing to the “pervasiveness and the cumulative effect of the prosecutor’s numerous improper closing arguments.”
It is the second murder and child-abuse conviction of Ana Maria Cardona to be overturned by the high court for the state’s misconduct in the now twenty-six year odyssey of Miami-Dade County’s prosecution of Cardona in the death of her three year old son, Lazaro, in a case that was labelled in the press the “Baby Lollipops” murder because of the shirt Lazaro was wearing at the time of his death.
The state’s first conviction of Cardona and the accompanying death sentence came in 1992, but was vacated a decade later when the Florida Supreme Court held that prosecutors had violated their constitutional duties under Brady by failing to disclose to the defense statements made by the chief witness against Cardona, her then-companion, Olivia Gonzalez Mendoza.
According to the Miami Herald at her second trial in 2010, Cardona was prosecuted by Miami-Dade State Attorneys Susan Dannelly and Kathleen Pautler, who have both since left the office.
While last week’s decision in Cardona v. State does not name either of these women, the Herald identifies Pautler as the prosecutor who conducted the closing arguments responsible for having the county’s second conviction of Cardona overturned. In its 6-1 opinion last week, the court wrote:
The most troubling aspect of the prosecutor’s closing argument in this case was the repeated references to seeking “justice for Lazaro,” culminating in the statement that the “only verdict” that would provide this “justice” was a verdict of guilty of first-degree murder.
A bedrock principle of our criminal justice system is that every effort must be made in any trial—regardless of whether the case involves such heart-wrenching circumstances—to ensure that the jurors base their decision, not on sympathy for the victim or prejudice against the defendant, but solely on the facts elicited during trial…When the State instead uses closing argument to appeal to the jury’s sense of outrage at what happened to the victim and asks the jurors to return a verdict that brings “justice” to the victim, the State perverts the purpose of closing argument and engages in the very type of argument that has been repeatedly condemned as antithetical to the foundation of our criminal justice system that guarantees a fair trial to every accused.
Prosecutor: When you elect that foreman, you have to decide what’s the truth here, but I’m going to ask you, remember, this trial is about justice for Lazaro.Defense Counsel: Objection, inflames the jurors.The Court: Sustained.Prosecutor: I’m going to ask [that] when you go into that jury room, you find her guilty.Defense Counsel: We have a motion—Prosecutor: Guilty of first-degree murder as charged in the indictment.This is the only verdict that’s going to give justice for Lazaro.Defense Counsel: Objection, improper argument.The Court: Overruled.Prosecutor: Thank you.
[O]ther clearly improper arguments were made, including repeatedly denigrating the defense case and calling parts of the defense’s presentation “diversionary tactics”; and making personal attacks on the defendant, such as calling Cardona a “drama expert” and comparing her to a character on a “telenovela.” … [This] was a racially charged comment that served no purpose other than to ridicule Cardona.
Thus the court concluded, Paulter’s comments, “which pervaded the prosecutor’s closing argument, were not harmless beyond a reasonable doubt. A new trial is therefore required.”
The State’s response has been to promise a third trial. Miami-Dade State Attorney Katherine Fernandez Rundle told the Herald, “While we are saddened by today’s Florida Supreme Court decision in the Ana Cardona murder case, we are prepared to retry this homicide. The cruelty involved in young Lazaro Figueroa’s murder deserves our fundamental commitment.”
In Cardona’s second trial, in 2010, during the penalty phase, the jury voted for the death sentence by the narrow margin of 7-5. If prosecutors decide to seek the death penalty for a third time, however, they will almost certainly face a higher bar. Last month the U.S. Supreme Court, in Hurst v. Florida, struck down the state’s death penalty scheme which had left the final determination of the death sentence to the trial judge, who was even allowed to overrule juries who had voted against death. Hurst establishes that juries must have the ultimate say in the imposition of such a sentence.
In response, the Florida legislature recently passed a revised death penalty bill that would require a minimum of 10 out of 12 jurors to vote for the penalty. That bill is expected to pass the state Senate and be signed by the governor.