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Closing Argument: Prosecutorial Misconduct – Interest-of-Justice Review

State v. Clifford D. Bvocik, 2010 WI App 49; for Bvocik: James C. Murray

Prosecutorial Misconduct – Closing Argument

Improper prosecutorial closing argument—encouraging jury to draw false inference—requires new trial in interest of justice; State v. Robert H. Weiss, Jr., 2008 WI App 72, controlling:

¶1        State v. Weiss, 2008 WI App 72, ¶¶15-17, 312 Wis. 2d 382, 752 N.W.2d 372, we held that when a prosecutor’s closing argument asks the jury to draw an inference that the prosecutor knows or should know is not true, it is improper argument which may require reversal. This is a Weiss-type case. The State alleged that Clifford D. Bvocik used a computer to facilitate a meeting with what he thought to be an underage girl in order to have sex, contrary to Wis. Stat. § 948.075(1) (2007-08).[1] There never was an underage girl; she was a twenty-eight-year-old woman pretending to be fourteen. Whether she was twenty-eight or fourteen should not have mattered so long as Bvocik thought she was fourteen and traveled to Manitowoc to meet a person whom he believed to be a fourteen-year-old girl. But the prosecutor, in closing argument, made a comment from which the jury could infer that the woman was a fourteen-year-old girl and that Bvocik had reason to believe that. While doing so, the prosecutor knew the real truth—she was twenty-eight, not fourteen—a fact which the jury was never allowed to hear. We know this affected the jury because it wrote a question to the court, during deliberations, wanting to know the correct age of the “girl” in question. As in Weiss, the prosecutor’s statement in closing argument prevented the real issue from being tried and we reverse and remand in the interest of justice.

The opinion was originally recommended for non-publication, and publishing it can only be seen as sending a message re: the importance of prosecutorial rectitude in closing argument. The fact that the court grants relief despite absence of objection (discussed separately) only reinforces that perception. In short, Weiss cannot be termed an outlier; it is now part of a line of authority. Keep in mind, though, that the court is talking about intentional misconduct (e.g., ¶12: “knowing the profile was true, he asked the jury to accept the inference that the profile might well be false”).

Prosecutorial misconduct was aggravated by a separate transgression, ¶15 n. 4:

We are also troubled by the prosecutor’s statement that his role is to “find the truth” while that is “not defense counsels’ role in any way, shape, or form … no where … does it say that it is his role to seek out that truth if that truth may be harmful to his client.” This statement is directly contrary to the teaching of our supreme court in State v. Mayo, 2007 WI 78, ¶43, 301 Wis. 2d 642, 734 N.W.2d 115. There, the prosecutor informed the jury that the defense counsel’s role was to “get his client off the hook” and “not to see justice done but to see that his client was acquitted,” whereas, her job was to look at the facts and determine if someone was guilty. Id., ¶42. Our supreme court held that this kind of role defining argument is improper and demeans the judicial process. Id. We find this especially disconcerting here because the prosecutor went on to suggest to the jury that the profile might be false when he knew it was true.

Sound familiar?

Interest of Justice – Unobjected-to Closing Argument
¶12 n. 3:

We note that there was never an objection from counsel. To be sure, counsel did immediately raise the issue during a sidebar but there was no formal objection and no motion for mistrial was made. Nonetheless, counsel could not have suspected that the prosecutor would make the female’s age an issue. Just like the counsel in Weiss, Bvocik’s counsel was likely surprised by the sudden turn of events during the prosecutor’s closing rebuttal argument and it was too late to place countering evidence in the record.