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DA tells jury: “In order to acquit you must find victims were lying”

State v. Gerrod R. Bell, 2015AP2667-2668-CR, 12/1/16, District 4 (not recommended for publication), petition for review granted 3/13/2017, affirmed, 2018 WI 28; case activity (including briefs)

Bell was convicted of sexually assaulting two sisters aged 14 and 17. At trial, the DA told the jury that it couldn’t acquit unless it first concluded that the sisters were lying and unless Bell established a reason for them to lie. On appeal, Bell argued that the DA’s argument violated the principles that the State has to prove guilt beyond a reasonable doubt, a defendant is presumed innocent, and a defendant has the right not to testify at trial. Bell also asserted ineffective assistance based on his lawyers failure to redact exhibits provided to the jury.

DA’s alleged misstatement of law.

The court of appeals opinion quotes the DA’s closing statement to the jury at ¶¶14-17, 21-22. But it held that the DA did not misstate the law:

[W]e conclude that the prosecutor did not present the “must believe” comments as statements about what the law requires. Instead they were presented as comments on the facts in evidence, in particular about the mutually exclusive versions of the truth presented in the evidence. As quoted above, the prosecutor introduced the concept in closing by saying, “After hearing all the evidence that we’ve heard, what are the things that we must believe true if he is not guilty?” (Emphasis added.) In the same vein, the passages quoted above reveal that the prosecutor tied his “must believe” comments to particular pieces of evidence, inviting the jury to apply the State’s two-stark-alternatives theory to the particulars of the case. Slip op. ¶28.

It likened Bell’s situation to United States v. Amerson, 185 F.3d 676, 680 (7th Cir. 1999) (not improper for prosecutor to comment that jurors “simply cannot believe the testimony of these police officers and believe the defendant’s testimony at the same time”). Slip op. ¶30.

Likewise, the court of appeals rejected Bell’s argument that the DA improperly stated that he had the burden to prove motive:

[W]hen people lie, they typically do so for some reason or reasons; in the prosecutor’s view, the jury had not been presented with evidence providing any possible reason for AL or TP to lie; and due to the lack of evidence, it would be pure speculation to decide that AL or TP had a reason or motive to lie. ¶33.

IAC for failure to redact exhibits.

The jury received exhibits referencing the younger sister’s statements that she had never had sex before Bell assaulted her. On appeal, Bell argued that his trial lawyer should have sought to redact these statements from the exhibits. Due to the lack of 3rd-party witnesses to the assaults and to the victims’ delay in reporting them, the mistake, he urged, tipped the scales in favor of the State. The court of appeals didn’t regard the statements as significant and hence found “no prejudice” under Strickland.

[A]ssuming that the jury took notice of the statement by TP in the exhibits that she lost her virginity to Bell, this additional information could not reasonably have added meaningfully to the jury’s thinking about the key question, which was whether she was lying in the first place in saying that Bell had sexual intercourse with her. The jury could have just as easily concluded, at least from this virginity-related evidence alone, that TP had had intercourse with one or more men other than Bell before her examination by the physician. ¶47.

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