In a decision handed down this Monday, the California Second District Court of Appeal granted Mr. Garry Dean a new trial because prosecutorial misconduct pervaded the trial that resulted in his conviction for murder. In a fairly unusual ruling—most courts hesitate to reverse convictions because of prosecutorial wrongdoing—the appellate court recognized the decisive influence misconduct can have in a close case. Not only did the court of appeal find that the prosecutor repeatedly misbehaved, but it also emphasized that the trial court failed to rein in the prosecutor and provide corrective guidance. With a new trial, Dean has the opportunity to obtain a different result than the second-degree murder conviction that led to a sentence of 35 years to life.
The facts of the case are complicated; the opinion sets them out in detail. To understand the opinion and ultimate outcome, one needs to know that Dean was on trial for allegedly killing a man named Alton Batiste. Batiste was found seriously injured near the site of a van that had crashed into a highway divider in West Los Angeles. Batiste had suffered several knife wounds and died about nine days later. Prosecutors believed that Batiste’s murder was linked to the murder of Travon Powers, who was killed hours before the van crash. These offenses appeared gang-related. Powers was scheduled to testify against three members of a local gang (for a murder that occurred several months earlier) when he was killed. Batiste was with Powers when he died, and prosecutors thought that Batiste may have been targeted because he witnessed the Powers killing.
At bottom, the State wanted to utilize evidence of Powers’s killing in Dean’s trial to provide a motive and broader context for Batiste’s murder. The defense team challenged the State’s effort to use evidence from the Powers crime, arguing that the prosecution simply wanted to use an uncharged murder to bolster its weak case against Dean with inferences that he was responsible for other serious crimes. The first judge who presided over the case preliminarily ruled that some of the evidence the State wanted to introduce was inadmissible, and that he would further consider whether to allow evidence of the Powers killing but that the State should proceed on the assumption it would not be admitted at trial.
The prosecutor then dismissed the case against Dean. That same day, the prosecutor re-filed the case in another district court under a new case number. Dean’s defense team immediately asked for the case to be moved back to the original district court and argued that the State was forum-shopping. Pressed by the new judge presiding—the second judge on the case—the prosecutor admitted that the unfavorable evidentiary rulings made by the first judge were “a factor” in the State’s decision to dismiss charges and re-file them in another location. The judge expressed concern about this revelation, but did not transfer the case.
Later, a third judge presided over a defense motion to dismiss the case based on the prosecution’s forum-shopping. That judge deferred to the prosecutor’s discretion, denied the defense motion, and allowed the case to proceed to trial. (The court of appeal determined that the prosecution’s opportunistic dismissal and re-filing was disfavored but not prejudicial in this case.)
The trial judge ended up being the second judge—Judge Lomeli. He changed the case’s earlier course and decided that the prosecution could introduce evidence that Powers had been killed shortly before Batiste was found wounded, and that Batiste was with Powers at the time of the earlier murder.
At the trial, the detective who testified about the Powers murder testified that a significant amount of blood had been found in the front passenger seat of the car found at the scene of that crime. He also testified—incorrectly it turns out—that he did not think he had submitted the bloodstains for DNA testing. Relying on the fact that the State had put this detective on the stand and had introduced photos of the bloody vehicle, the defense lawyer argued in closing statements that it appeared possible that Batiste was injured in the car with Powers rather than in the van that Batiste and Dean rode in later that night.
In response, the prosecution gave a rebuttal closing statement that crossed well-established ethical lines. Early on, the prosecutor alleged that the defense attorney outright lied to the jurors: “And what the defense just did to you was to con you and mislead you into believing things that the defense knew were not true . . . .” With the trial judge’s approval, the prosecutor then discussed DNA testing results—results and tests that the detective oddly forgot about—from the bloodstains in the Powers car that had never been introduced into evidence:
There were eight swabs on DNA. You can imagine that the police wanted to swab that location for DNA. We’re talking about the murder of a witness right before the preliminary hearing. They wanted to solve that. They wanted to identify whose blood that was, and eight swabs came back. Did any of them come back to Alton Batiste [victim], as the defense suggested to you? No. None of them did. They all came back to only one person: Travon Powers. Yes, it is the defense who suggests to you that it was Alton Batiste’s blood and that he was stabbed there, knowing full well that that was not true.
In his appeal, Dean argued that this line of argument constituted classic prosecutorial misconduct. The prosecutor disparaged defense counsel and relied heavily on evidence that had never actually been introduced to the jury.
To refute this claim on appeal, the California Attorney General’s office went back to the well to say that the prosecutor at trial was merely responding in kind to the defense lawyer’s misconduct. The court of appeal summarized the State’s position:
The Attorney General asserts (as had the prosecutor in the trial court) that defense counsel’s use of the photograph of Kennedy’s car coupled with her discussion of the absence of any DNA evidence from the bloodstains visible in the car was an improper argument in light of the court’s in limine rulings. She then argues the court fashioned a reasonable remedy for this violation, but, perhaps not surprisingly, offers no authority that allows a prosecutor to discuss in closing argument evidence that had not been presented to the jury.
Then, the court determined that the defense attorney had not actually done anything improper: “the record does not establish she engaged in improper or unethical conduct.” The opinion chides the trial court for providing the prosecutor with a degree of leeway that had no legal basis: “The appropriate response would have been to admonish the jury to disregard the statements by defense counsel about the lack of DNA evidence and not to speculate about such testing.”
Ultimately, the court of appeal found that the State went too far: “Generally, a prosecutor has wide latitude in describing the deficiencies in opposing counsel’s tactics and factual account, but it is misconduct when he or she disparages defense counsel or accuses counsel of fabricating a defense.” Combined with the fact that “[t]he [trial] court did nothing to deter the prosecutor’s verbal assault, despite repeated objections by defense counsel,” the appellate court had no doubt the misconduct would have influenced the jurors’ decision-making. (Remarkably, the appellate court found that the prosecution also engaged in another type of misconduct—it specifically commented on Dean’s failure to testify and explain his conduct, another constitutional no-no.)
TOF readers will know that the backdrop for this case—California—has been a hotbed of controversy and misconduct. The same day that the court reversed Dean’s conviction, the LA Times reported that a federal district court judge threw out the conviction and sentence of death-row inmate Barry Williams because of misconduct by high-profile former prosecutor Carmen Trutanich. Nearby Los Angeles, in Orange County, the snitch scandal continues to rock the District Attorney’s office on what seems like a daily basis. And in Riverside County, a not-too-far drive away, federal judges recently made clear to AG Kamala Harris that her office would be embarrassed if it continued to defend the rampant misconduct that occurred in the murder case against Johnny Baca. It’s enough major misconduct to make one wonder: does all of this have anything to do with the fact that California is the only state that has not adopted a version of the professional ethical rule that applies specifically to prosecutors?
In granting Dean a new trial, the court of appeal quoted another case:
Where, as here, in a closely balanced criminal case, misconduct is repeated and persisted in, . . . and is so pronounced and pernicious that it is not in human nature to forget or disregard its prejudicial effect, then . . . the only remedy remaining is to be found in a reversal of the judgment.
Two lessons appear clear: prosecutors need to respect the rules; and, trial courts need to enforce them. It will be interesting to see whether the California Attorney General—already under scrutiny for its handling of cases in which local prosecutors engaged in misconduct—tries to appeal the case and reinstate Dean’s conviction. Such a move would appear unsupportable given the court of appeal’s careful ruling here, but it would not be unprecedented.