Review of an unpublished court of appeals decision; case activity (including briefs)
Issues (composed by On Point)
- Whether the prosecutor’s closing argument impermissibly shifted the burden of proof by telling the jury that in order to acquit the defendant they would have to believe the complaining witnesses were lying, that there would have to be evidence of a reason for them to lie, and that the defendant had presented no reason to believe they were lying.
- Whether the defendant was deprived of the right to effective assistance of counsel because trial counsel did not object to the jury being given unredacted exhibits containing inadmissible information that one complainant had not had sexual intercourse before the assault alleged in this case.
This is a very interesting case, and one to watch. Not only is the first issue novel in Wisconsin, but the court’s decision on the first question might do something to revive some limits on prosecutor’s closing arguments in other ways.
As explained in our post on the court of appeals decision, Bell was convicted of sexually assaulting two sisters aged 14 and 17. During closing argument, and following up on a theme first broached during voir dire, the DA repeatedly told the jurors that in order to acquit Bell they “have to believe” or “must believe” that the sisters lied to the social worker, to the police, at the preliminary hearing and “to us.” On top of that, the DA argued the jurors couldn’t conclude the sisters were lying unless Bell established a reason for them to lie, and that he hadn’t done so. (Slip op. ¶¶14-17, 21-22). The court of appeals rejected Bell’s argument that the DA’s remarks misstated the law, holding instead that the comments were about the evidence in the case, not the law the jury was to apply in deciding the case. (Slip op. ¶28).
Bell makes a carefully crafted, interlocking argument regarding the state’s closing. The first part is that the prosecutor distorted the burden of proof by incorrectly stating what the jury must find in order to reach a certain verdict. No Wisconsin case has addressed this issue, so Bell cites cases from other jurisdictions, e.g., United States v. Vargas, 583 F.2d 380, 386-87 (7th Cir. 1978) (improper to argue that an acquittal requires the jury to conclude the DEA agents lied); United States v. Cornett, 232 F.3d 570, 574 (7th Cir. 2000) (improper to argue that jury has to find the police officers lied to find the defendant not guilty); United States v. Richter, 826 F.2d 206, 209-10 (2nd Cir. 1987) (arguing that if the FBI agents are telling the truth, then the defendant is guilty is an improper statement of the law); State v. Graves, 668 N.W.2d 860, 880 (Iowa 2003) (improper to tell jury that if they believe officer, “there is no question [the defendant] is guilty as charged.”); State v. Singh, 793 A.2d 226, 239 (Conn. 2002) (improper to argue that the only way the jury could find the defendant not guilty was if it determined that five government witnesses had lied). Telling jurors they must choose between finding the defendant guilty or concluding the state’s witnesses are liars is erroneous because “it … does not follow as a matter of law that in order to acquit [the defendant] the jury had to believe that the agents had lied.” Vargas, 583 F.2d at 387. Instead, a jury could conclude the state’s witnesses told the truth and yet still decide the evidence failed to prove the defendant’s guilt beyond a reasonable doubt. We’ll see if the supreme court follows the compelling logic of these cases.
The second link in Bell’s argument regarding the state’s closing is that, having told jurors they can’t acquit unless the sisters are lying, telling the jurors Bell had to present evidence of why the sisters would lie shifted the burden of proof to the defense and amounted to a comment on his decision not to testify. Though it is well established that comment on a defendant’s silence is forbidden, Griffin v. California, 380 U.S. 609, 615 (1965), decisions dealing with comments suggesting the defendant has an obligation to present evidence are awfully forgiving to the state, e.g., State v. Patino, 177 Wis. 2d 348, 382, 502 N.W.2d 601 (Ct. App. 1993) (holding it was permissible for the prosecutor to imply that the failure of the defendant to present available evidence—other than the defendant’s testimony—in opposition to the government’s witnesses supported an inference that the government’s witnesses were reliable). Thus, the decision in Bell’s case will be an important test of this line of argument.
As to the second issue presented: The court of appeals assumed trial counsel was deficient but found no prejudice. (Slip op. ¶¶46-47). The issue isn’t novel or unusual, but involves the application of the well-established law governing IAC claims; so if the court reaches this issue, it will simply provide another example of how (or how not) to apply that law.
My thoughts to attorneys reviewing this case for trial strategy: Often defense attorneys have the decision to object to rebuttal closing arguments of the state. Often the state attorney saves the best punch argument for last, and many times arguments/ comments are made that have no connection to defense attorneys words of closing argument (beyond parameters of defense closing argument). Attorneys have to be careful not to look like a “sour grapes defense attorney” objecting and being overrulled, can emphasize and give credence to a state argument. Think about making it clear to the jury that 1) Defense get to speak further, and remind them that the state should only comment on your closing argument 2) Remind the jurors that the state has already had one chance to argue their case to the jurors, and think about anything new, why was this not brought out the first time, if it was important. 3) I like to put the focus back on jurors, that neither the state or defense argument is the final, the jurors must all listen to their “view of what is proven as facts”, and don’t let the state shift duties to defense, or the jurors to prove or disprove the case.