PROSECUTORIAL MISCONDUCT
Updated 9/29/09
Closing Argument: Vouching for Witness
State v. James D. Lammers, 2009 WI App 136, PFR filed 9/16/09
For Lammers: Amelia L. Bizzaro
Issue/Holding: In context, the prosecutor’s closing argument “on why I think you should believe” a witness did not amount to impermissible vouching.
¶16      During his closing, the prosecutor argued that Lammers had been a party to the false insurance claim and told the jury, “Well, if you believe Frank Webster, and I will go into later on why I think you should believe Frank Webster, then [Lammers] knew, he knew ahead of time, it was his idea.” The State contends that this comment simply forecasts evidence that has led the State to believe Webster’s testimony. We agree that this comment does not vouch for Webster’s truthfulness, but rather predicts that after hearing the summation of the evidence, the jury will believe the testimony. A prosecutor may comment on the evidence, argue to a conclusion from the evidence, and may state that the evidence convinces him or her and should convince the jury. State v. Adams, 221 Wis. 2d 1, 19, 584 N.W.2d 695 (Ct. App. 1998). Furthermore, the prosecutor delivered on his promise to explain why Webster should be believed, stating in part that (1) Webster testified he knew he would be in trouble if he lied, (2) Webster had already pled no contest and had nothing to gain by lying, and (3) Webster admitted that Lammers had received no money from the insurance settlement. “[A] prosecutor is permitted to comment on the credibility of witnesses as long as that comment is based on evidence presented.” Id. at 17. There is no plain error here.
Nor did another comment, that the witnesses were told that perjury charges would result if they lied, amount to vouching, given the full context:
¶19      We are convinced that the prosecutor said nothing objectionable thus far. Rather, the prosecutor alerted the jury to possible motives for the testimony given. We observe that the door to this issue was opened on cross-examination, when defense counsel elicited from Webster the terms of his agreement with the State to “fully cooperate” lest his probation be revoked. Upon further cross-examination, Webster stated that the only way he could get in more trouble was by lying on the witness stand. The State is allowed to respond to allegations that its witnesses were coached to lie in exchange for deals with the State. See, e.g., State v. Kaster, 148 Wis. 2d 789, 799-800, 436 N.W.2d 891 (Ct. App. 1989). There was no fundamental error; furthermore, “[A]sking a witness whether he [or she] is testifying by agreement is not likely to bolster his [or her] credibility. If anything it is likely to have the opposite effect, by imputing a motive for the witness’s testifying as the prosecution wants … regardless of the truth.” United States v. Mealy, 851 F.2d 890, 899 (7th Cir. 1988) (citation omitted). And, finally, the circuit court’s instruction to the jury regarding heightened scrutiny of testimony from witnesses granted immunity and witnesses who were co-conspirators was sufficient to dispel any potentially harmful effects of the prosecutor’s references to truthful testimony. See id. at 900.
Moreover, one of the witnesses was granted immunity in the presence of the jury, with the colloquy including a warning that he would face perjury charges if he lied under oath, ¶21. However, prosecutorial argument that “I believe that their testimony and their demeanor [were] credible” presents a closer, if ultimately unsuccessful, question:
¶23      There is a fine line between what is and is not permitted concerning the lawyer’s personal opinion. Even if there are improper statements by a prosecutor, the statements alone will not be cause to overturn a criminal conviction. United States v. Young, 470 U.S. 1, 11 (1985) (“criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone”). Rather, the statements must be looked at in context of the entire trial. Id. Here, the prosecutor tempered the appearance that he was imposing his own credibility determination upon the jury by asking the jurors to use their own best judgment in assessing the truthfulness of the witnesses. Specifically, the prosecutor reminded the jurors that they themselves saw Webster and Gottsacker testify and could draw their own conclusions.

¶24      Also, the prosecutor’s comment occurred in the midst of his summation of the evidence. A prosecutor may comment on the credibility of witnesses provided that comment derives from the evidence. Adams, 221 Wis. 2d at 17. The prosecutor did an exhaustive review of the evidence and, in this case, his comment about what he believed was tied to the record. We are not persuaded that the remark rises to the level of a fundamental error or that it usurped the role of the jury as arbiter of witness credibility.

Not at all clear why this opinion was published, given a) its fact-specific nature and b) the change in the no-cite rule—i.e., you could still cite it if unpublished, it just wouldn’t be binding; but the opinion simply doesn’t lay down any novel principles anyway, so how often would someone need it to be binding? That said, the opinion does strongly suggest that prosecutorial use of “I believe” to marshal evidence is permissible, ¶22, citing a couple of obscure foreign cases. But just what is prosecutorial vouching? The court doesn’t quite get around to saying (which makes the publication recommendation all the more curious). Even if “vouching” really is all that self-evident, reciting the test wouldn’t hurt: the test for “plain error” is no less, well, plain, but that didn’t deter the court from a detailed intro, ¶¶12-15. You’ll find decent discussions on vouching in U.S. v. Combs, 379 F.3d 564 (9th Cir 2004) (long and short of it: improper vouching when prosecutor offers personal assurances of veracity of witness or suggests testimony supported by information not introduced into evidence; cases collected) and United States v. Weatherspoon, 410 F.3d 1142 (9th Cir 2005) (Combs followed, court explaining that vouching has two vices: 1) implication the prosecutor’s opinion rests on matters falling outside the record; 2) “prestige of the government” stands behind the witness). The risk, ultimately, is that the jury would substitute the prosecutor’s opinion for its own, independent judgment. Weatherspoon puts the matter quite nicely: “In each instance the prosecutor’s message is identical: I believe [do not believe] the testimony of Witness A. Therefore you should believe [not believe] Witness A too [either].” (Compare that observation to the one by our court, ¶22, that “colloquial phrases such as ‘I believe’ are permissible in the context of discussing the evidence.”) It’s not clear from the court of appeals’ analysis that it perceived any such danger on these facts, but it would have been nice to have it said explicitly.
Closing Argument – Reference to Defendant’s Failure to Testify
State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
For Doss: Robert R. Henak
Issue/Holding: Closing argument remarks addressed to Doss’s failure to explain missing funds did not amount to a comment on her failure to testify:
¶81      …
[F]or a prosecutor's comment to constitute an improper reference to a defendant's failure to testify, three factors must be present: (1) the comment must constitute a reference to the defendant's failure to testify; (2) the comment must propose that the failure to testify demonstrates guilt; and (3) the comment must not be a fair response to a defense argument.
State v. Jaimes, 2006 WI App 93, ¶21, 292 Wis. 2d 656, 715 N.W.2d 669 (citing Robinson, 485 U.S. at 34).

¶92      We have previously declined to establish a bright-line test as to "whether a prosecutorial comment crosses over 'into the forbidden area of comment on an accused's failure to testify' and 'violates constitutional rights,'" State v. Moeck, 2005 WI 57, ¶74, 280 Wis. 2d 277, 695 N.W.2d 783(citing State v. Edwardsen, 146 Wis. 2d 198, 215, 430 N.W.2d 604 (Ct. App. 1988)). Instead, such determinations must be made on a case-by-case basis. Moeck, 280 Wis. 2d 277, ¶74.

¶93      The court of appeals has adopted the approach taken by the Third Circuit that "[t]he test for determining whether remarks are directed to a defendant's failure to testify is 'whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.' Questions about the absence of facts in the record need not be taken as a comment on a defendant's failure to testify." State v. Johnson, 121 Wis. 2d 237, 246, 358 N.W.2d 824 (Ct. App. 1984)(citations omitted). Applying this test, the court of appeals has ruled that by presenting a limited reply to a defendant's claim during a pro se trial that the state was unable to prove its case, the prosecutor did not improperly comment on the defendant's failure to testify. Id.; See also State v. Werlein, 136 Wis. 2d 445, 457, 401 N.W.2d 848 (Ct. App. 1987)([T]he prosecutor's comments were made in rebuttal to defense counsel's suggestion that these were legitimate explanations for the events leading to the shooting.").

¶94      Thus, where Doss's attorney argued that Doss's behavior in depositing the estate funds showed nothing but good motives, it is not clear that the prosecutor's statements about the absence of facts in the record should be taken as a comment on Doss's failure to testify, particularly where there was no direct reference to Doss's failure to testify. This is the type of case that straddles a fine line between permissible and impermissible commentary by the State. The U.S. Supreme Court has recognized that a prosecutor's statement that falls short of a direct statement on a defendant's failure to testify, but instead "'refers to testimony as uncontradicted where the defendant has elected not to testify and when he is the only person able to dispute the testimony,'" is at most an attenuated violation of Griffin v. California, 380 U.S. 609 (1965), and Robinson, 485 U.S. at 34, and may not actually constitute a violation at all. United States v. Hasting, 461 U.S. 499, 503, 506 & n.4 (1983). Therefore, Doss has not established that her counsel's failure to object was deficient performance. See Johnson, 133 Wis. 2d at 217; Strickland, 466 U.S. at 688.

So? Did the closing argument amount to a comment on failure to testify or didn’t it? The court doesn’t purport to say. Apparently, it doesn’t have to. Trial counsel, in the first instance, waived the issue by not objecting, ¶83. More problematically, the court now seems to say that when an issue isn’t clear-cut, counsel can’t be deficient by failing to react. Thus, this case “straddles a fine line” and therefore Doss didn’t establish deficient performance. To be sure, the court doesn’t connect the dots quite that directly, but what else could it have meant? In this sense, the holding joins a lengthening list of cases to similar effect (see summaries collected here).
Closing Argument – Referring to Defendant as “Chronic Alcoholic”
State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶30      The prosecutor, during closing argument, identified the defendant as a "chronic alcoholic":
This is a trial that is a search for truth. The truth of the matter is that Mr. Jorgensen is a chronic alcoholic. I don't know if we're ever going to get him to believe that, but that's the truth. The truth of the matter is Mr. Jorgensen drove to court that day and he was drunk, and it was very foolish thing for him to do. . . .
¶31      This commentary was improper. First, it is inappropriate for an attorney to allude to a matter not supported by admissible evidence. See SCR 20:3.4(e); State v. Freiberg, 35 Wis.  2d 480, 484, 151 N.W.2d 1 (1967) (stating that alcoholism is a disease that should be proven by expert medical opinion). Second, it is improper for a prosecutor to provide the jury with information, which allows the jury to consider facts not in evidence when determining guilt. See State v. Smith, 2003 WI App 234, ¶23, 268 Wis.  2d 138, 671 N.W.2d 854. Third, while the statement is not evidence because it was stated during closing arguments, it is still useful to assert that labeling Jorgensen a "chronic alcoholic" is not relevant, and it is highly prejudicial. See Wis. Stat. §§ 904.01 and 904.03. Fourth, the context in which the "chronic alcoholic" comment arose comes dangerously close to asking the jury to convict Jorgensen of OWI because he is an alcoholic who may not acknowledge that he has a problem. See generally Robinson v. California, 370 U.S. 660, 666 (1962) (rendering a statute unconstitutional because it punished the status of having a narcotics addiction rather than the act of manufacturing, selling, purchasing, or possessing narcotics).
The comments were not merely improper, but violated confrontation and due process, ¶¶39-44, at least given the context. (The prosecutor’s closing argument, that is, also “highlighted … inadmissible information,” ¶43, among other things. In other words, it’s far from clear that mere disparagement as a “chronic alcoholic” would violate these rights, though the reference itself might well under the block quote above be seen as improper.)
Closing Argument – Knowingly Encouraging Jury to Draw False Inference
State v. Robert H. Weiss, Jr., 2008 WI App 72
For Weiss: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding:
¶1    This is a case where it is claimed that the prosecutor struck a foul blow during closing arguments when she told the jury that the defendant, Robert H. Weiss, Jr., never denied committing the offense until he took the witness stand when, in fact, she had possession of two police reports showing that he did immediately deny it. Berger v. United States, 295 U.S. 78, 88 (1935), holds that, while the prosecutor may strike hard blows during closing arguments, the prosecutor’s duty is to refrain from using improper methods. We hold that the prosecutor’s argument stepped over the line and is not harmless. We reverse and remand with directions that Weiss be tried anew.
The court relies heavily on two cases cited by Weiss, United States v. Toney, 599 F.2d 787 (6th Cir. 1979), and People v. Kirby, 144 N.W.2d 651 (Mich. Ct. App. 1966):
¶15      … In fact, her complete argument on the subject was that, other than a formal plea of not guilty, Weiss had never denied the crime until he got on the witness stand. She knew better. She had the two police reports saying otherwise. We hold that the facts here comport with the situations in Toney and Kirby. We point out once more, because this is important: the State concedes that the prosecutor’s argument, asserting that Weiss never denied the crime, implicitly including verbal denials, was incorrect. The importance of what we are about to say cannot be underscored enough. Prosecutors may not ask jurors to draw inferences that they know or should know are not true. That is what occurred here and it is improper.
Of note: the error wasn’t preserved, but the court reaches the merits, and grants relief, on an interest-of-justice theory, ¶¶16-17. Also, the court chivalrously never identifies the foul-blow striking prosecutor, in contrast to State v. Patrick Jackson, 2007 WI App 145, ¶22. This differential treatment might be attributable to something as arbitrary as the panel composition; or it might reflect something institutional: the court’s perception of greater egregiousness of one form of misconduct, hence greater need for deterrence through public obloquy ( Jackson involved the prosecutor’s inexcusable expression of personal belief in guilt). You be the judge.

Update: The prosecutor was subsequently reprimanded, 09-OLR-12 for her conduct in this case:

By stating to the jury during closing and rebuttal arguments that the defendant never denied committing the offense until he took the witness stand when, in fact, Bunch had possession of two police reports showing that the defendant had denied committing the crime, Bunch violated former SCR 20:3.3(a)(1), effective prior to July 1, 2007, which states, in relevant part, “A lawyer shall not knowingly: (1) make a false statement of fact . . . to a tribunal; . . .”
By stating to the jury during closing and rebuttal arguments that the defendant never denied committing the offense until he took the witness stand when, in fact, Bunch had possession of two police reports showing that the defendant had denied committing the crime, Bunch violated SCR 20:8.4(c), which states, “It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
Closing Argument – Encourage Inference of Guilt from Failure of Defendant’s Wife to Appear in Response to State’s Subpoena
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding: Prosecutorial argument to the jury to draw a conclusion from the idea that the defendant’s wife “refused to honor a (State’s) subpoena” was proper, the court distinguishing the thrust of the argument from that contained in the now-discredited “missing witness” instruction:
¶44      We do not agree with Cockrell that the prosecutor was asking the jury to draw an adverse inference from his failure to call Jones as a witness. The prosecutor was asking the jury to draw an adverse inference from her failure to appear in response to the State’s subpoena. We see nothing improper in this argument and conclude the circuit court’s overruling of the objection was not a misuse of discretion. [14]
Ex Parte Contact with Judge
State ex rel. Adrian T. Hipp v. Murray, 2007 WI App 202, (AG’s) PFR filed 8/16/07
Pro se
Issue/Holding: ¶13 n. 4:
We are disturbed by Reddin’s presumption to give, and Judge Murray’s acquiescence to receive, Reddin’s ex parte advice about the scope of Hipp’s ability to have issued subpoenas for the production of his witnesses at the John Doe hearing, and we remind the bench and the bar of SCR 60.04(1)(g) (“A judge may not initiate, permit, engage in or consider ex parte communications concerning a pending or impending action or proceeding” other than in carefully delineated circumstances.), and SCR 20:3.5 (“A lawyer shall not: … (b) communicate ex parte with [a judge] except as permitted by law or for scheduling purposes if permitted by the court.”). See also State v. Washington, 83 Wis. 2d 808, 824–825, 266 N.W.2d 597, 605 (1978). The Rules of Professional Conduct were amended, effective July 1, 2007, by S. Ct. Order 04-07, 2007 WI 4. Supreme Court Rule 20:3.5(b) is unchanged. The new Rules of Professional Conduct may be accessed at: http://www.legis.state.wi.us/rsb/scr/5200.pdf.
Disturbed, but not quite enough to do anything about it, even though the judge also apparently obstructed Hipp’s attempts to order transcripts, ¶15 n. 5:
¶15 Hipp also seeks an order removing Judge Murray as his John Doe judge, and Reddin from further participation. We have no doubt but that Judge Murray will on remand fulfill his responsibilities as an impartial magistrate. See State v. Washington, 83 Wis. 2d 808, 824, 266 N.W.2d 597, 605 (1978). [5] We express no opinion whether Hipp may, on remand, seek relief under either Wis. Stat. §§ 801.58(7) or 971.20(7), the substitution-of-judge statutes in civil and criminal cases, as that issue has not been presented or briefed. We also decline to interfere with the authority of the Milwaukee County district attorney to assign his deputies and assistants as he sees fit. See Wis. Stat. § 978.03(1) & (3).
Also see State ex rel. Gibson v. H & SS Dept., 86 Wis.2d 345, 355, 272 N.W.2d 395 (Ct. App. 1978) (“In attempting to maintain the appearance, as well as the actuality of neutrality, there has long existed a distaste for ex parte communications while a case or hearing is pending. This concept has been codified in standard ten of Wisconsin's Code of Judicial Ethics … .”).)
Closing Argument – Statement of Personal Belief in Guilt
State v. Patrick Jackson, 2007 WI App 145, PFR filed 6/6/07
For Jackson: Marcella De Peters
Issue/Holding:

¶22 We believe, however, that it is important to remind all lawyers, as well as prosecutors, that it is a violation of the lawyer’s code of ethics for a lawyer to tell a jury what he or she believes is the truth of the case, unless it is clear that the lawyer’s belief is merely a comment on the evidence before the jury. Supreme Court Rule 20:3.4 is explicit:

A lawyer shall not: … (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused. [2]

(Emphasis and footnote added.) See also State v. Johnson, 153 Wis. 2d 121, 133 n.11, 449 N.W.2d 845, 850 n.11 (1990) (It is “unprofessional ‘for the prosecutor to express his or her personal belief.’”) (quoting ABA Standards for Criminal Justice § 3-5.8(b) (2d ed. supp. 1986); United States v. Young, 470 U.S. 1, 6–11 (1985) (discussing expressions of personal belief by counsel). We set out in context the offending remark by the prosecutor, Milwaukee County assistant district attorney Irene E. Parthum:

I think that the State has proven its elements. I think that this kind of a vague Early Watkins’ statement is not consistent with Carlos Williams and Carlos Williams’ one is not consistent with the facts as they were found. I’m asking you to find the defendant guilty because I believe truly that he is guilty, but your belief is the one that counts, and there is no jury in the world that is more credible and qualified to do this than you. [3]

(Emphasis and footnote added.) The “I believe truly that he is guilty” assertion was improper and violated the then-extant Supreme Court Rule 20:3.4(e) as well as the one that will be effective July 1, 2007. We trust that all lawyers will comply fully with both the spirit and letter of Rule 20:3.4(e), and that the trial courts will enforce this obligation. See Young, 470 U.S. at 7–10 (discussing obligations of the trial courts in preventing lawyer misconduct).

 [2] The Rules of Professional Conduct were amended, effective July 1, 2007, by Supreme Court Order 04-07, 2007 WI 4. Supreme Court Rule 20:3.4(e) is unchanged.

 [3] The “no jury in the world that is more credible and qualified to do this than you” comment was, arguably, in response to what the prosecutor perceived was Jackson’s lawyer’s invitation to the jury to not reach a unanimous verdict, and thus was not per se inappropriate. See United States v. Young, 470 U.S. 1, 12–19 (1985) (discussing “invited response”).

Ouch. Pretty clear that the court of appeals intends to deter argument based on personal expression of guilt. Note that the court expressly declines to reach the merits of the issue, given that it has already reversed on other grounds, ¶21. The only purpose of the discussion, then, is to stress the court’s displeasure with the closing argument.

The supreme court, for that matter, just got done reminding that arguments disparaging to opposing counsel “are not acceptable in Wisconsin courts” under our code of ethics, State v. Thomas S. Mayo, 2007 WI 78, ¶42 (“’Specifically, the prosecutor's statements that the role of defense counsel was to ‘get his client off the hook’ and ‘not to see justice done but to see that his client was acquitted’ were improper, even though they may have been invited”). Not acceptable maybe, but not distressing enough to require relief, at least in that instance. Maybe there’s a hierarchy in which personal expression of guilt occupies the top rung on the egregiousness ladder. Or maybe the disparaging remark was somewhat mitigated because it was invited (by a defense argument likening the prosecutor to Saddam Hussein (!)) but whatever distinctions might be drawn, unless this is simple coincidence it may be that the appellate courts will have increasingly less tolerance for improper argument. And might even do something about it.

Closing Argument – “Disparaging” Defense Counsel’s Role
State v. Thomas S. Mayo, 2007 WI 78, affirming unpublished opinion
For Mayo: Keith A. Findley, UW Law School

Issue/Holding:

¶42      While we are satisfied that, although some of the arguments of both the prosecutor and defense counsel were improper, the remarks did not reach a level warranting a new trial based either on plain error or in the interest of justice. Specifically, the prosecutor's statements that the role of defense counsel was to "get his client off the hook" and "not to see justice done but to see that his client was acquitted" were improper, even though they may have been invited by defense counsel's remarks about the prosecutor's role. Defense counsel's remarks in his closing argument analogizing the prosecutor to Saddam Hussein and accusing the prosecutor of "spinning the evidence" were also improper and disparaging. Such disparaging remarks, made by both the prosecutor and defense counsel in this case, did not comport with the rules of ethics and civility that members of the bar are expected to, and required to, follow. Such remarks demean the judicial process and are not acceptable in Wisconsin courts. Under Supreme Court Rule 62.02(1)(c)(2002), lawyers are to "[a]bstain from making disparaging, demeaning or sarcastic remarks or comments about one another."

The court, however, almost immediately backtracks from such high-mindedness:

¶44      The fact that defense counsel’s role is to advocate for his client is common knowledge, shared by jurors. Under such circumstances, it is quite unlikely that the prosecutor’s remarks about the role of defense counsel, and vice versa, had any significant influence over the jury's decision here. Furthermore, the circuit court instructed the jury that opening statements and closing arguments are not evidence and are not to be considered by the jurors as evidence. We are satisfied, therefore, that the jury was not improperly influenced by the prosecutor's comments and that the comments did not so "'infect[] the trial with unfairness as to make the resulting conviction a denial of due process.'" Davidson, 236 Wis. 2d 537, ¶88 (citation omitted).

In other words, even though the prosecutor's disparagement of defense counsel violated the code of ethics, she wasn’t saying anything outside the jury’s “common knowledge.” Besides which, the judge instructed the jury not to regard argument as evidence. That tends to minimize the problem, doesn’t it? What’s the recourse? Ethics complaint? In any event, contrast the court’s tack with this one, People v. Alvarado, 141 Cal. App. 4th 1577, 1580 (Cal. Ct. App. 2006): “We hold that the prosecutor in this case committed prejudicial misconduct when she began her rebuttal jury argument by stating, ‘I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crime occurred. [¶] The defendant charged is the person who did it.’”

Granted, the remarks aren’t the same, but the point is that the California court granted relief, which is the most expedient sort of deterrent to improper argument; more: that court’s mandate included that, “(p)ursuant to Business and Professions Code section 6086.7, subdivision (b), the clerk is ordered to send a certified copy of this opinion to the State Bar.” Deterrence squared. Besides, isn’t the necessary implication of the remarks in Mayo’s case that, unlike defense counsel, the prosecutor is interested in seeing justice done? And is that implication terribly different from the prosecutorial remark in Alvarado? On the other hand, what’s with the reference to Hussein? Must’ve been a wild and wooly trial.

Closing Argument – Describing Offense as “Crime of Opportunity”
State v. Thomas S. Mayo, 2007 WI 78, affirming unpublished opinion
For Mayo: Keith A. Findley, UW Law School

Issue/Holding: Prosecutorial argument that the defendant had “committed a ‘crime of opportunity’ was not purely opinion, but was based on evidence before the jury,” ¶45.

(Concurrence Only, Not Majority:) Closing Argument -- Expression of Personal Belief in Guilt, Waving "Bloody Shirt"
State v. Edward Bannister, 2006 WI App 136, (AG’s PFR filed 6/22/06)
For Bannister: Kenneth P. Casey, UW Law School, Remington Center
Concurrence (Issue not Discussed or Reached by Majority):
¶15 ...  The prosecutor then told the jury that the Milwaukee medical examiner and a toxicologist working in his office would testify that Michael Wolk died on January 17, 2003, from an overdose of morphine that he ingested either that day or the night before, but that the prosecutor was “not asking” the jury “to make a determination who is at fault for Michael Wolk’s death. I don’t know who is at fault for that death.  I know who is at fault for giving him, several days before, some morphine and selling it to him, and that’s this defendant right here.” (Emphasis added.) In my view, all of this was highly improper.

¶16   First, a lawyer may never tell a jury what the lawyer knows about the contested issues in a case. Supreme Court Rule 20:3.4 is not only explicit: “A lawyer shall not: … (e) in trial, … assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, … or the guilt … of an accused,” but, indeed, this is law-school 101. ... Waving the “bloody shirt” of Wolk’s overdose death invited—in the most blatant way—the jury to consider the evidence as proving that, beyond the delivery-charge, Bannister was also guilty of homicide. [10] Thus, the prosecutor’s “warning” to the jury that “the purpose of the testimony regarding the death is not [ sic] ask someone to answer for that death, but it’s an important element of evidence that I think that you have to listen to” was disingenuous and not befitting the important role for justice that prosecutors have in our system. Indeed, it is a perfect example of the apophasis rhetorical device—arguing something by disclaiming an attempt to so argue. The prosecutor’s opening-statement dance was, as Justice Felix Frankfurter noted in a somewhat related context, akin to “the Mark Twain story of the little boy who was told to stand in a corner and not to think of a white elephant.”  Leviton v. United States, 343 U.S. 946, 948 (1952) (mem. of Frankfurter, J.).


[10] According to the Wikipedia online encyclopedia: “The term ‘bloody shirt’ can be traced back to the aftermath of the murder of the third Caliph, Uthman in 656 CE, when a bloody shirt and some hair alleged to be from his beard were used in what is widely regarded as a cynical ploy to gain support for revenge against opponents.” http://en.wikipedia.org/wiki/Bloody_shirt
(Concurrence Only, Not Majority:) Opening Statement -- Knowingly Promising Evidence that Can't Be Proven
State v. Edward Bannister, 2006 WI App 136, (AG’s PFR filed 6/22/06)
For Bannister: Kenneth P. Casey, UW Law School, Remington Center
Concurrence (Issue not Discussed or Reached by Majority):
¶20   A prosecutor’s use of non-evidence (such as assertions in an opening statement or, under some circumstances, questions) to sway a jury, can deny a defendant his or her right to confrontation when those assertions are not backed by evidence produced at trial.  Douglas v. Alabama, 380 U.S. 415, 418–420 (1965) (defendant denied right to confrontation when prosecutor’s statements and questions, although “not technically testimony,” was the equivalent in the jury’s eyes, thus triggering the right to confront).  Of course, not every opening-statement promise of proof that is not validated by evidence is a prejudicial denial of the confrontation right. ...

¶21   Further, and working synergistically with the defendant’s right to confront his or her accusers, is the rule that no party, especially a prosecutor in a criminal case, may promise to prove something that he or she knows, or reasonably should know, cannot be proven by evidence at trial. ...

...

¶24   ... Further, any lawyer, especially prosecutors, whose jobs are, as we have discussed, to seek justice and not merely convictions, should never promise in their opening statements to prove something unless they are certain that the evidence is both available and admissible. Trial judges, as impartial arbiters of justice, must ensure that this is done, and use appropriate judicial power if it is not. Additionally, institutional law offices, such as the district attorney’s office, have a special responsibility to ensure that the lawyers they send into court follow the simple rules of evidence, ethics, and fairness. ...

Closing Argument – Waiver of Objection – “Send A Message” Argument
State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: Failure to move for mistrial waived any objection to the prosecutor’s closing argument, ¶60. Nor do the comments rise to the level of plain error necessary to overcome waiver:
¶61      The State points out that, in denying Schutte’s motion for postconviction relief, the trial court observed that the prosecutor’s discussion of “sympathy” in his rebuttal was largely a counter to defense arguments regarding the impact the “accident” had on Schutte. For example, defense counsel told jurors, “And I would ask you to consider [Schutte], who’s a victim in this accident also. She was seriously injured. She lost her boyfriend. She lost her best friend and lost another friend. No matter what the verdict is, she won’t move on from this.” The State also notes that courts in other states have concluded that it is not improper argument for a prosecutor to appeal to jurors to “send a message to the community” or to hold a defendant “accountable.” [12]
 [12] See, e.g., Jowers v. State, 613 S.E.2d 14, 17 (Ga. Ct. App. 2005) (“‘It is not improper for a prosecutor to appeal to the jury to convict for the safety of the community, or to stress the need for enforcement of the laws and to impress on the jury its responsibility in that regard.’”); State v. Collins, 150 S.W.3d 340, 354 (Mo. Ct. App. 2004) (“The State may argue that the jury should ‘send a message’ that society will not tolerate certain conduct.”); People v. Howell, 831 N.E.2d 681, 692 (Ill. Ct. App. 2005) (not error for a prosecutor to ask jurors to “hold[] the defendant accountable for his actions”); Commonwealth v. Wheeler, 645 A.2d 853, 859 (Pa. Super. Ct. 1994) (not error for a prosecutor to tell jurors that “defendants should be held ‘accountable to the law of a civilized people.’”).
Failure to encourage complainant to cooperate with defense.
State v. Juan Eugenio, 219 Wis.2d 391, 579 N.W.2d 642 (1998), affirming State v. Eugenio, 210 Wis. 2d 347, 565 N.W.2d 798 (Ct. App. 1997).
For Eugenio: Eduardo M. Borda
Issue: Whether the prosecutor committed misconduct in "fail(ing) to encourage the victim or her mother to cooperate with the defense investigation." ¶41.
Holding: "While prosecutors may not discourage witnesses from cooperating with the defense, they are also not under an affirmative legal duty to encourage such cooperation." ¶51.
Charging Decision -- Filing Criminal Complaint Against Defendant's Attorney On Eve of Trial
State v. John A. Lettice (I), 205 Wis. 2d 347, 556 N.W.2d 376 (Ct. App. 1996)
(subsequent history: State v. Lettice (II), 221 Wis. 2d 69, 585 N.W.2d 171 (Ct. App. 1998); BAPR v. Steven M. Lucareli, 2000 WI 55)
For Lettice: Keith A. Findley, Suzanne Hagopian, SPD, Madison Appellate
Issue/Holding:
In Wisconsin, the district attorney has great discretion in deciding whether to file criminal charges. Sears v. State, 94 Wis.2d 128, 133, 287 N.W.2d 785, 787 (1980). However, when the district attorney initiates a prosecution without sufficient evidence to support a conviction, or for coercive reasons, he has abused his discretion. Thompson v. State, 61 Wis.2d 325, 329-30, 212 N.W.2d 109, 111 (1973).

The trial court found that there was no probable cause to support the charge against Burgy, and we agree. ...

The trial court criticized Lucareli's motives for filing the charge on the eve of trial. ...

Instead, the evidence supports the trial court's finding that Lucareli filed the charge either to disqualify Burgy or to delay the jury trial. Lucareli's intentional misconduct had a profoundly negative impact on Burgy's ability to effectively represent Lettice. The cumulative effect of Burgy's errors deprived Lettice of his due process right to a fair trial. ...

... The trial court directly attributed Burgy's ineffectiveness to Lucareli's misconduct.

We agree with the trial court that prosecutorial misconduct deprived Lettice of a fair trial and prejudiced his defense, especially in light of the closeness of the case and the seriousness of Lucareli's misconduct. We therefore affirm the order for a new trial.

On subsequent appeal following remand, Lettice II, the court of appeals held that this prosecutorial misconduct barred retrial on double jeopardy grounds notwithstanding the absence of motion for mistrial. And, interestingly, the BAPR proceeding resulted in findings sustained on appeal that prosecutor Lucareli did not actually know that the charge he filed was unsupportable, 2000 WI 55, ¶22; and that Lucareli's filing the charge wasn't meant to harass defense counsel, ¶23. Those findings are probably inconsistent with the grant of relief, and make for a very odd ending.
Closing Argument – Comment on Right not to Testify 
State v. Jose M. Jaimes, 2006 WI App 93, PFR filed 5/11/06
For Jaimes: Joseph L. Sommers
Issue/Holding1: “(F)or a prosecutor’s comment to constitute an improper reference to the defendant’s failure to testify, three factors must be present:  (1) the comment must constitute a reference to the defendant’s failure to testify; (2) the comment must propose that the failure to testify demonstrates guilt; and (3) the comment must not be a fair response to a defense argument,” ¶21.
Issue/Holding2: The prosecutor’s closing argument that a co-actor could not be expected to testify because he “isn’t going to walk into court and … waive his Fifth Amendment right and … be implicating himself in a crime” did constitute a reference to the defendant’s own failure to testify, ¶22. However, it did not satisfy the other two parts of the test: “the prosecutor did not state or intimate that Jaimes’s failure to testify indicated guilt,” ¶23; and, it was “a fair response” to the defense argument that failure to produce the co-actor as a witness should be held against the State, ¶24.
Closing Argument – Misstatement of Law re: Means to Compel Testimony of Missing Witness 
State v. Jose M. Jaimes, 2006 WI App 93, PFR filed 5/11/06
For Jaimes: Joseph L. Sommers
Issue/Holding: The prosecutor did not misstate the law in arguing to the jury that the State did not have the means to compel missing witnesses to testify:
¶26      First, the prosecutor did not state that he lacked the ability to compel Arbiter or Velazquez to testify.  The prosecutor simply stated that Jaimes has “got subpoena power the same way I do to ask people to come here.” Thus, the prosecutor was pointing to the ability of both the State and Jaimes to subpoena witnesses. …

¶27      Although it is true that the State, unlike a defendant, can offer “use immunity” to a prospective witness for trial testimony under Wis. Stat. § 927.08(1)(a), the prosecutor cannot grant use immunity. …

Closing Argument – Comment on Silence -- Door-Opening
State v. Richard A. Moeck, 2005 WI 57, affirming 2004 WI App 47
For Moeck: David D. Cook
Issue/Holding:
¶74 The circuit court was correct that a prosecuting attorney ordinarily may not comment on an accused's decision not to testify.[39] There are circumstances, however, when an accused "opens the door" to a measured response by the prosecuting attorney.[40] The defendant opened the door in the instant case. It is impossible to draw "a bright line for all cases between permissible and impermissible comment;"[41] whether a prosecutorial comment crosses over "into the forbidden area of comment on an accused's failure to testify"[42] and "violates constitutional rights must be made case by case."[43] We conclude, however, under the circumstances of the instant case, that the circuit court did not give adequate consideration to the State's response and to a curative instruction.
[39] Griffin v. California, 380 U.S. 609, 614-15 (1965).
[40] United States v. Robinson, 485 U.S. 25, 31-34 (1988); State v. Keith, 216 Wis. 2d 61, 80-83, 573 N.W.2d 888 (Ct. App. 1997); State v. Johnson, 121 Wis. 2d 237, 247-49, 358 N.W.2d 824 (Ct. App. 1984).
[41] State v. Edwardsen, 146 Wis. 2d 198, 215, 430 N.W.2d 604 (Ct. App. 1988).
[42] Id.
[43] Id.
Closing Argument – “Golden Rule” Argument
State v. Michael A. DeLain, 2004 WI App 79, PFR granted, on other grds.
For DeLain: Robert R. Henak
Issue: Whether the prosecutor’s closing argument request that the jury consider how the complainant feels listening to the defense theory required mistrial.
Holding:
¶23. DeLain next claims the prosecutor's use of a "golden rule" argument during his closing argument requires reversal. Generally, a golden rule argument involves asking the jurors to place themselves in the position of someone claiming injury or damage and asking the jurors to determine what they would want as compensation. See Featherly v. Continental Ins. Co., 73 Wis. 2d 273, 284, 243 N.W.2d 806 (1976). In a criminal case, a golden rule argument asks the jurors to place themselves in the victim's shoes. See Rodriguez v. Slattery, 54 Wis. 2d 165, 170, 194 N.W.2d 817 (1972). These statements are not allowed because they appeal to the jurors' sympathy for persons who have been injured or victimized by a crime.

¶24 … DeLain argues this was an improper golden rule argument that so infected the trial with unfairness such that the conviction results in a denial of due process. See State v. Lettice, 205 Wis. 2d 347, 352, 556 N.W.2d 376 (Ct. App. 1996). Thus, he claims the trial court erred by failing to grant his motion to dismiss. We disagree.

¶25. The decision of whether to grant a motion for a mistrial lies within the trial court's discretion. State v. Ross, 2003 WI App 27, ¶47, 260 Wis. 2d 291, 659 N.W.2d 122. …

¶26. Following the State's brief remark, DeLain's counsel immediately objected and the prosecutor promptly withdrew the comment and apologized for making the statement. In fact, the State later urged the jury to weigh its decision solely on the evidence and to not be swayed by emotion. The circuit court later instructed the jury to "not be swayed by sympathy, prejudice or passion. You will be very careful and deliberate in weighing the evidence. I charge you to keep your duty steadfastly in mind and as upright citizens to render a just and true verdict." Because of the isolated nature of the remark, the State's immediate response, and because juries are presumed to follow the instructions, State v. Smith, 170 Wis. 2d 701, 719, 490 N.W.2d 40 (Ct. App. 1992), we conclude the trial court did not erroneously exercise its discretion by denying the motion for a mistrial.

Of course, the result doesn't suggest tolerance for a "golden rule" argument, one species of which is appeal to the jury's need "to convict in order to alleviate societal problems" -- see, e.g., U.S. v. Weatherspoon, 9th Cir No. 03-10551, 5/6/05.
Closing argument -- facts not in record.
State v. Tee & Bee, Inc., 229 Wis. 2d 446, 600 N.W.2d 230 (Ct. App. 1999).
For Tee & Bee: Jeff Scott Olson.
Issue/Holding: The prosecutor's closing argument held improper for arguing facts not in the record: "We also caution the prosecutor against using, in closing argument, evidence that was not a part of the record and which constituted evidence that Super Video was prohibited from introducing. The prosecutor argued to the jury that comparable materials were not available in the community. This information was not contained in the record and, therefore, was improper. See State v. Neuser, 191 Wis.2d 131, 142, 528 N.W.2d 49, 53-54 (Ct. App. 1995). Further, the prosecutor argued exactly what Super Video was not allowed to put into evidence, which was also improper. See State v. Albright, 98 Wis.2d 663, 677, 298 N.W.2d 196, 204 (Ct. App. 1980)."
Closing Argument -- Mischaracterizing Theory of Defense as “The Police Are Lying”
State v. Steven T. Smith, 2003 WI App 234
For Smith: Mark S. Rosen
Issue/Holding: Failure to object to prosecutor’s closing argument assertion that characterized the theory of defense as “the police are lying” was, given the closeness of the case, prejudicial:
¶12. During closing argument, the State proposed the following to the jury:
See, this argument -- While defense attorneys try and say, well, we're not saying the police are lying; what else are they saying? There's no other reasonable explanation, and it kind of frustrates me knowing and working in this field and knowing these officers; and you know them now too. You know them. They work hard. They do a tough job. They come in here to testify a lot of times. They work long, long hours. You weigh their testimony against the defendant's.

¶19. In the case before us, because of certain evidentiary deficiencies and inconsistencies, the pendulum of fairness hung in equipoise.

¶23. The line between permissible and impermissible final argument is not easy to follow and is charted by the peculiar circumstances of each trial. Whether the prosecutor's conduct during closing argument affected the fairness of the trial is determined by viewing the statements in the context of the total trial. State v. Wolff, 171 Wis. 2d 161, 167-68, 491 N.W.2d 498 (Ct. App. 1992). The line of demarcation to which we refer "is thus drawn where the prosecutor goes beyond reasoning from the evidence to a conclusion of guilt and instead suggests that the jury arrive at a verdict by considering factors other than the evidence." State v. Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784 (1979). "Argument on matters not in evidence is improper." State v. Albright, 98 Wis. 2d 663, 676, 298 N.W.2d 196 (Ct. App. 1980).

¶24. In close cases, a prosecutor must be sensitive to the evidentiary hand that he or she has been dealt. When arguing by inference, special care must be taken that there exists an evidentiary basis, however slight, for the logical conclusion he or she suggests in the closing argument. Artful subtleties, ill-cast and expressed, may be occasion for error. A prosecutor's interest as a representative of the state is "not [to] win a case, but [to see] that justice shall be done." Viereck v. United States, 318 U.S. 236, 248 (1943).

¶25. In this close case of evaluating credibility, we cannot ignore the prosecutor's self-imposed frustration at his own proposed suggestion that testifying police officers may have lied. This argument was made not in rebuttal, but in the State's opening final argument. There is, however, no basis in the record to assume the suggestion that any police witness lied. Nor is there any evidentiary basis to claim such an argument was invited. Smith's defense was mistaken identity, lack of physical evidence, and failure to meet the burden of proof. Once the prosecutor's rhetorical straw man was created, however, it had to be eliminated. How did the prosecutor accomplish that? With the challenged closing argument: "[I know] these officers; and you know them now too. You know them. They work hard. They do a tough job. They come in here to testify a lot of times. They work long, long hours. You weigh their testimony against the defendant's."

¶26. It is undisputed that there is no evidentiary basis for the officers' work habits or job demands, or the basis for the prosecutor's knowledge of them. This portion of the prosecutor's closing argument unfairly referenced matters not in the record and vouched for the credibility of the police witnesses. In the context of the total trial, we conclude that the quoted portion of the prosecutor's final argument placed the reliability of the proceedings in doubt to the extent that the fairness of the trial has been jeopardized. We conclude that Smith was prejudiced. Because the trial court did not conduct an evidentiary hearing to address the alleged deficiency of trial counsel for failure to object to the final argument or move for a mistrial, we remand for an evidentiary hearing for this determination.

The case is quoted at length because, among other things, it’s so rare that closing argument is cause for reversal, let alone in the context of ineffective assistance. The principal case, Darden v. Wainwright, 477 U.S. 168 (1986), holds that even universal condemnation of the prosecutor’s rhetoric (in that case, referring to Darden as “an animal”) isn’t enough to show denial of a fair trial. But Smith seems to take a different approach – not so much that police lying vs. defendant’s credibility represents an appeal to juror emotions, but that the defense never claimed the police were lying, and therefore the prosecutor’s characterization of the defense claim wasn’t based on the evidence. The problem, that is, may be less that the prosecutor appealed to juror sentiment to support the police no matter what, and more that the prosecutor mischaracterized the defense position. It’s probably wrong, then, to see this holding as limiting prosecutorial rhetorical flourishes; wrong, in particular, to extrapolate to a generalized ban on the term “lying.” In this regard, see, e.g., State v. Johnson, 153 Wis. 2d 121, 132-33, 449 N.W.2d 845 (1990), on reconsideration (approving prosecutor’s description of defendant as a “liar”); and Kappos v. Duckworth, 54 F.3d 365 (7th Cir. 1995) (referring to defendant as “artful liar” didn’t violate constitution).

Nor, for that matter, should this holding be confused as retreat from the evidentiary principle that a defendant may be cross-examined as to whether other witnesses are “lying.” See generally, State v. Victor K. Johnson, 2004 WI 94; and State v. Andre Bolden, 2003 WI App 155, ¶11. The upshot is that the prosecutor may cross-examine the defendant as to whether a testifying eyewitness is “lying,” if such an inquiry is limited to impeachment of the defendant. Presumably, the prosecutor can go ahead and argue the result to the jury in closing. and then argue to the jury that that is indeed the defense theory – which could well work a meaningful distinction from Smith. But at least where the inquiry isn't supported -- legally or factually -- then Smith would seem to prohibit argument to the jury. See also U.S. v. Combs, 9th Cir. No. 02-50485, 8/5/04 (arguing to jury that to acquit defendant required believing that government agent would risk job by lying on witness stand amounted to improper prosecutorial vouching.); U.S. v. Weatherspoon, 9th Cir No. 03-10551, 5/6/05 (similar facts and result: improper vouching to "clearly urge[] that the existence of legal and professional repercussions served to ensure the credibility of the officers’ testimony").

The other interesting aspect is that the credibility issue doesn’t really seem all that close in Smith. Draw your own conclusions, but a holding of no prejudice probably wouldn’t have been controversial. In other words, the result may represent a sense that prosecutorial appeal to raw emotion is an increasing problem and must be stopped before getting out of hand. If so, the court certainly found a clever way to do that, because, as noted, the holding isn’t really anchored in notions of inflammatory appeals.

Closing Argument -- Harmless Error
State v. Carlos R. Delgado, 2002 WI App 38
For Delgado: Richard D. Martin, Diana M. Felsmann, SPD, Milwaukee Appellate
Issue/Holding: “Isolated comments" by the prosecutor during closing argument, suggesting that a witness vouched for the complainants’ credibility and therefore amounting to Haseltine error, were harmless in light of instructions that the jurors were sole judges of credibility and also that the witness “cannot testify as matter of law that these particular people were in fact sexual assault victims." ¶¶15-18.
Go to Brief
Closing Argument -- Racial Stereotyping
State v. Dale H. Chu, 2002 WI App, PFR filed 4/23/02
For Chu: Andrew Shaw
Issue: Whether the prosecutor's argument to the jury, that the crime was motivated by defendant's father's financial straits, and that defendant carried out the crime due to familial loyalty grounded in Korean culture.
Holding:
¶23. Our conclusion is consistent with Aliwoli v. Carter, 225 F.3d 826 (7th Cir. 2000), where the seventh circuit recognized that although there is no place in a criminal prosecution for "gratuitous references to race," the State may properly refer to race where it is relevant to the defendant's motive. See id. at 831....

¶26. Similarly, we do not view the prosecutor's statements as an attempt to arouse jury prejudice toward Koreans. Rather, the statements were an attempt to preview and summarize evidence demonstrating that Chu had a motive for committing the arson: his personal belief, based on his upbringing and culture, that he should remain loyal to his family. Indeed, the jury heard evidence concerning Chu's individual beliefs, introduced through Weiss as admissions."