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On July 31, 2015, Assistant State Attorney David Fear won a criminal conviction against Marco Rodriguez for lewd or lascivious molestation. On February 10, 2017, a Florida appeals court found that the prosecutorial victory came at the expense of basic fairness. In addition to reversing Mr. Rodriguez’s conviction and granting him a new trial, the appellate court’s 2-1 ruling took the appropriate, if unusual, step of referring Mr. Fear’s misconduct to the state bar for potential disciplinary action. The majority’s opinion is a stinging rebuke of egregious State misconduct at trial and an exemplar in how a court should understand its own duty to thoroughly address prosecutorial rule-breaking.

The court carefully catalogued Mr. Fear’s breathtaking range of misconduct. It noted that “during his rebuttal closing argument the prosecutor strayed from acceptable zealous representation, repeatedly crossed far beyond the outer limits of acceptable argument, while venturing deeply into the realm of prosecutorial misconduct.” The three primary forms of misconduct included:

  • Calling the defendant a “pedophile” seven times despite rules prohibiting pejorative characterizations of the accused;
  • Making the “well-known and completely inappropriate” argument that the jury must give the victim justice;
  • “[M]isstat[ing], misrepresent[ing], and/or inaccurately recount[ing] certain evidence, including repeatedly saying that Appellant had admitted to several specific inappropriate sexually-related activities with the victim, when in fact Appellant had consistently, repeatedly denied them.”

While these three forms of misconduct reside at the core of the case, the court also noted that Fear approached or crossed the line of proper closing argument in four additional ways.

After spelling out when the law requires that convictions be reversed due to misconduct, the court concluded that this prosecutor’s misconduct placed Mr. Rodriguez’s case squarely in the category of those demanding a new and fair trial. “The flood of improper prosecutorial comments in closing argument in this case was deep, wide, and unrelenting; it made a mockery of the constitutional guarantee of a fair trial for Appellant.”

The opinion clarified that the prosecutor’s misconduct entails serious costs for everybody in the criminal justice system, not just the defendant. In its words:

Appellant’s retrial is not just a “do over.” The alleged victim, a child, will once again have to tell her story of familial sexual molestation to a judge and a second jury, while Appellant will once again be publicly accused and tried for sexually molesting a five-year-old. All of the witnesses’ normal schedules will be interrupted as they stand by to testify and attend court. Other parties’ trials will be delayed because this case must be tried twice. Confidence in our judicial system suffers when prosecutors are permitted to utilize clearly inappropriate closing arguments to convict. Winning at all costs is too high a price to be paid by too many.”

Too often the public is unable to easily ascertain the full extent of damage done by lawyers responsible for misconduct. Here, the court has assisted the citizenry, emphasizing that the victim, witnesses, defendant, others awaiting trial, and people selected for the next jury will collectively pay the price for Mr. Fear’s reckless behavior.

The court also chastised the trial court judge and the defense attorney for failing to ensure that the prosecutor did not cross constitutional boundaries. The court wrote that it was “[u]nfortunate[]” and “inexplicabl[e]” that “defense counsel sat silently by, never objecting, during the repeated improper comments made by the prosecutor.” It also reminded judges that “trial courts have a duty, even without hearing any objection, to bring a swift and sure end to prosecutorial misconduct in closing argument, especially when it becomes as frequent and flagrant as in this trial.”

Crucially, the appellate court ordered the clerk to notify the state bar about Mr. Fear’s ethical lapses (unfortunately, the court did not identify David Fear by name, but in all other respects delivered a full-throated criticism of his misconduct).

[W]e also have a duty to take appropriate action concerning what we perceive to be several clear departures from professionalism and possible ethical violations on the part of the prosecutor. . . . the action we take is to order the clerk of this court to provide the Florida Bar with a copy of this opinion, a copy of the trial transcript, and a letter identifying the attorney who prosecuted this case on behalf of the State at the trial court level, so that the Bar or on its referral, the Ninth Judicial Circuit’s Local Professionalism Panel, can decide how best to address this lawyer and the unfortunate conduct.

The Florida Fifth District Court of Appeal’s majority opinion here comprehensively and methodically dealt with the State’s disregard of Mr. Rodriguez’s due process rights. The court correctly identified its own responsibility—indeed, “duty”—to not only identify the injustices created by Fear’s misconduct but also to report his ethical lapses to the disciplinary body. Too often, appellate courts wash over misconduct with findings of “harmless error” and fail altogether to acknowledge the duty to refer ethical violations to the bar.

One lingering question is whether the State Attorney in Orange County (no, not that embattled District Attorney in the other OC) will respond. The newly-elected State Attorney, Ms. Aramis Ayala, took office in January, as part of a wave of reformers unseating largely old-school law-and-order incumbent district attorneys. With several years of experience as both a public defender and a prosecutor, Ms. Ayala should be well aware of the grave constitutional and ethical boundaries violated by her employee in this case (though, to be clear, the violations themselves took place under the previous State Attorney’s leadership).

Yet, the office’s initial response emits a mixed signal. “We respect the opinion of the 5th DCA and we take these issues seriously. Mr. Fear’s emotions during a closing argument involving the sexual abuse of a child led to some inappropriate and overzealous statements. Mr. Fear has been a dedicated and passionate prosecutor. We are confident he has learned from this experience.” Refreshingly, the response did not seek to undermine the appellate court—an all-too-common tactic in cases like this one. On the other hand, Ms. Ayala’s office did not suggest that she considered any internal discipline or that she supports professional discipline. Given the stakes, a simple trip to the appellate court’s woodshed seems insufficient here. The ball is now in the court of the Florida Bar’s disciplinary lawyers.

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