In State v. Thierry, the WA Court of Appeals Division II decided that a Prosecutor’s statements during the closing argument of a child sex abuse case was an improper appeal to passion and prejudice.
At trial, the Prosecutor’s closing argument discussed direct versus circumstantial evidence. This explanation included the following:
“None of you were present when these acts occurred. No one testified for you that they watched any of these acts happen. That would be direct evidence of the acts themselves, but that is not required and, if it were, the State could never prosecute any of these types of cases.”
She made a similar argument shortly thereafter, in a discussion of the sufficiency of the State’s evidence:
“Did Thierry rape and molest his son? Yes, he did. The evidence tells you that he did. What’s the evidence? JT is the evidence, and he is all that is required for you to find him guilty of these crimes. If the law required more, if the law required anything, something, anything beyond the testimony of a child, the child’s words, JT’s words, those instructions would tell you that, and there is no instruction that says you need something else. And, again, if that was required, the State could rarely, if ever, prosecute these types of crimes because people don’t rape children in front of other people and often because children wait to tell.”
She again returned to this argument near the end of her initial closing remarks, in discussing the burden of proof:
“Now I want to talk just briefly about the standard of beyond a reasonable doubt. You don’t need to know all of the pieces. You don’t need to have all of the information or have all of the answers. If that were necessary, first of all, the standard would be beyond all doubt possible, but if that were necessary, once again, the State would not be able to prosecute any of these crimes or really any crime, actually, because how can you all as jurors who are selected from the community know nothing about any of the people involved, and certainly yourselves were not present for any act or crime that was committed, how can you know with 100 percent certainty?”
The prosecutor continued in this vein during rebuttal, returning to her public policy theme:
Defense counsel wants you to basically disregard everything that JT has said between what he told Sayfullah, between what he told Ms. Arnold-Harms, between when he told his primary care provider Ms. Lin and what he told Amber Bradford. ‘Just disregard all of that because he’s a child, because he was 8 when he said these things and because he was 9 when he was on the stand. Nothing he said is credible so just disregard it all.’ If that argument has any merit, then the State may as well just give up prosecuting these cases, and the law might as well say that “The word of a child is not enough.”
At that point Thierry’s defense attorney objected that the prosecutor was “fueling the passion and prejudice of the jury.” The court overruled the objection and permitted the prosecutor to continue.
The jury returned guilty verdicts on all counts.
Thierry appealed that several of the remarks the Prosecutor made in closing argument merit reversal. He also argued that the cumulative effect of the improper statements denied him a fair trial.
Ultimately, the Court of Appeals agreed with Thierry and decided that the Prosecutor’s arguments were improper and that it had a substantial likelihood of affecting the verdict.
The court reasoned that as a general matter, to prevail on a prosecutorial misconduct claim a defendant must show that the prosecutor’s conduct was both improper and prejudicial in the context of the record and all of the circumstances of the trial. To establish prejudice sufficient to require reversal, a defendant who timely objected to the challenged conduct in the trial court must show a substantial likelihood that the misconduct affected the jury verdict.
The Court further reasoned that it’s improper for prosecutors to use arguments calculated to inflame the passions or prejudices of the jury. Arguments that compel the jury to send a message to society about the general problem of child sexual abuse qualifies as such an improper emotional appeal.
Here, the Prosecutor’s statement that, “If Defense Counsel’s argument concerning JT’s credibility has any merit, . . . the State may as well just give up prosecuting child sex abuse cases, and the law might as well say that ‘the word of a child is not enough’” also qualified as an improper appeal to passion and prejudice.
The Court further reasoned that even if the Prosecutor’s argument was deemed purely a response to the defendant’s argument, Defense Counsel never suggested that the jury should not believe JT because of his age. Furthermore, nothing in Defense Counsel’s closing argument, therefore, warranted the prosecutor’s message that the State may as well give up prosecuting child sex abuse cases if JT were not believed and Thierry acquitted.
Finally, the court reasoned that the Prosecutor’s arguments had a substantial likelihood of affecting the verdict. The outcome of the case depended entirely on whether the jury chose to believe JT’s accusations or Thierry’s denial. Consequently, the Prosecutor’s remarks created a substantial risk that the jury decided to credit JT’s testimony for improper reasons. The prosecutor’s remarks exacerbated that risk by misrepresenting Defense Counsel’s argument so as to unfairly undermine Thierry’s defense.
The Court of Appeals reversed Thierry’s convictions and remanded the case for further proceedings.
My opinion? Good decision. Generally, it’s a professional courtesy to not object during opposing counsel’s closing arguments. It’s considered rude. Nevertheless, defense attorneys must object at all times when appropriate, even if doing so is frowned upon by judges and juries. Prosecutorial misconduct happens all of the time, and ESPECIALLY during closing arguments. Those statements, made again and again, definitely affected the outcome of the case. Again, good decision.