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In a recent ruling that has generated no press coverage, a Michigan court of appeals granted a new trial to Andrew Spagnola—who had been convicted of child abuse—because the prosecutor committed deliberate and egregious misconduct during the trial. Although the opinion does not name the Macomb County prosecutor responsible for the misconduct outright, a transcript excerpt quoted in the opinion indicates that the attorney’s last name is Hosbein. According to the Prosecuting Attorney’s website, Gordon Hosbein is an assistant district attorney in the child protection unit. In addition to taking Hosbein to task for his unethical behavior, the court indicates that the prosecutor’s tactic was especially troubling because the State’s evidence against Spagnola was very weak. It remains to be seen whether Macomb County will retry Mr. Spagnola. There have been no reports about whether the state bar disciplinary committee or the Prosecuting Attorney’s office will take action against Hosbein.

The entire question in the case was whether the purported victim, Spagnola’s 11-week-old child, “OS”, was intentionally abused, or whether she suffered her injuries as a result of a traumatic birthing process. In a case defined by a “battle of the experts,” the defense presented “scientific evidence [] that OS had a birth-related subdural [hematoma] that bled, triggering a seizure and prolonged hypoxia, rather than a traumatic injury caused by shaking as theorized by the prosecution.” According to the court, “[t]he radiologic evidence was critical to the outcome.” However, remarkably, the State presented no expert who could interpret the radiologic evidence. The defense did. And, at closing, “[d]efense counsel began his closing with his strongest argument—the prosecutor’s failure to present the testimony of a radiologist.” In rebuttal, the prosecution stated, “I hope that you appreciate that I didn’t extend this trial because my radiologist is in Paris.” The defense immediately objected because the State never called a radiologist and never proved that it had one in Paris. The court told the prosecutor to “move on,” but did not admonish the jury.

This statement proved to be the main reason the court reversed Mr. Spagnola’s conviction:

Regardless of whether a radiologist the prosecution wanted to call really was “in Paris,” the prosecutor’s comment was highly improper. The prosecutor implied that had the radiologist been present at the trial, he or she would have testified in a manner consistent with the prosecution’s theory of the case. No evidence whatsoever supported this proposition, and the prosecutor knew it. This was deliberate and calculated misconduct, and the prosecutor engaged in it precisely because the case was extraordinarily close. The prosecutor no doubt recognized the central weakness in his presentation and the strength of the defense: the radiology. Defendant had a radiology expert, the prosecution did not.

But, Hosbein’s unethical behavior was not limited to a fleeting reference to essential evidence that simply did not exist. The court explained:

Several of the prosecutor’s statements crossed the line between proper and improper appeals to the jurors’ sympathy. The prosecutor’s recitation of music lyrics invoking the image of the grave of a murdered and forgotten child was improper. The prosecutor’s other naked appeals to sympathy were attempts to divert the jurors’ attention from the facts of the case and to inflame their passions.

Yet, the doctrine addressing prosecutorial misconduct in arguments is so deferential to prosecutorial power that the court declared, “[s]tanding alone, these statements would not demand a new trial.” The reason the court reversed the conviction here was that the prosecutor went even further in his rebuttal closing argument, to which “[n]ot only is defense counsel deprived of any ability to respond, the improprieties are the last words the jury hears before beginning deliberations.” The prosecutor went on to “name-calling” and “belittl[ing]” and expressing a “personal belief that the defense and its witnesses have lied . . . .” Of course, the prosecutor’s personal beliefs are irrelevant. The court recognized this wrongdoing, and yet again underscored that even these comments—absent any references to the evidence about a radiologist taking in views of the Eiffel Tower—would have not warranted reversal.

The Spagnola opinion demonstrates two realities at the same time: (1) prosecutors can almost completely ignore the rules without fear of a conviction being reversed; (2) even in a world in which they have so many demonstrable advantages, prosecutors at times cannot resist going even further than the already-lax rules permit. With the court’s powerful language and stinging reversal, it is fair to wonder whether Gordon Hosbein will be disciplined for his conduct. If only someone in the local media were asking that question.

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