Disagreeing with the circuit court’s holding that Hurley was entitled to a new trial in the interest of justice, the supreme court holds that the prosecutor did not improperly refer in closing argument to Hurley’s testimony that he could not “recall” allegations regarding sexual assaults that were admitted as other-acts evidence.
As discussed here, at Hurley’s trial on charges he sexually assaulted his stepdaughter the circuit court allowed Hurley’s sister, J.G., testify that Hurley had sexually assaulted her over 15 years earlier. On direct examination Hurley was asked if he “recall[ed]” having an encounter with J.G. when she was eight or whether he “recall[ed]” any of the allegations she made in her trial testimony; Hurley said “no.” In closing the prosecutor seized on Hurley’s lack of outright denial that he’d assaulted J.G., arguing that “[t]he question wasn’t did you do this or not, it was do you recall? That’s different than ‘it didn’t happen.'” But as the prosecutor (and Hurley’s lawyer) knew, a police report stated that J.G. had called Hurley about the assaults she alleged he committed against her, and Hurley denied he’d committed them. (¶¶3, 23-24, 99-100).
During postconviction proceedings the circuit court held this argument was improper and entitled Hurley to a new trial in the interests of justice under State v. Weiss, 2008 WI App 72, 312 Wis. 2d 382, 752 N.W.2d 372, which ordered a new trial where the prosecutor told the jury during closing argument and again during rebuttal that the first time the defendant denied the accusation against him was at trial, even though the prosecutor knew that the defendant had denied his guilt to police officers from the very beginning, on two separate occasions. “[The prosecutor] knew better. She had the two police reports saying otherwise …. Prosecutors may not ask jurors to draw inferences that they know or should know are not true.” Id., ¶15.
The supreme court disagrees, distinguishing Weiss because it involved at least 10 separate comments as opposed to “two very brief” comments here. (¶102). But more importantly:
¶102 …. [T]he inference that the circuit court thought the prosecutor was asking the jury to draw is unfounded. The circuit court thought the prosecutor was asking the jury to draw the inference that Hurley had never denied assaulting J.G., and that he only could not recall whether it had happened. The reasonable inference the prosecutor was arguing was that Hurley had not been asked by his trial counsel whether he assaulted J.G. (and Hurley did not volunteer a denial of J.G.’s allegations) because Hurley believed it was possible he had assaulted her, but could not recall having done so. The prosecutor did not say “he has never denied the assault before today” as the prosecutor did in Weiss, but instead stated that Hurley could not recall the assault which is different from “it didn’t happen.” The prosecutor did not ask the jury to draw an inference that he knew or should have known was untrue. The prosecutor merely commented on Hurley’s testimony at trial, appropriately held him to that testimony, and confined his remark to the reasonable inference discussed above. (Emphasis added.)
It’s fair for the court to look at the differences between Weiss and this case in terms of the prosecutor’s repetition of and stress on the argument; this was, after all, an interest of justice claim because trial counsel didn’t object. But it’s risible for the court to claim that the prosecutor wasn’t asking the jury to draw an inference he knew was false, for even the alternative reasonable inference manufactured by the court is false in light of the police report that has Hurley denying the allegations, not saying he “couldn’t recall.” And it bespeaks an inability to understand everyday language to say that the inference drawn by the trial judge—who sat through the trial, after all—is “unfounded.”
A final note: Hurley also unsuccessfully argued he was not given adequate notice of the charges; the supreme court’s rejection of that argument is discuss here.