Prosecutors take note: in several recent decisions, California appeals courts have enforced rules governing prosecutors’ closing arguments. In December, Ian Hudgins received a new trial in his murder case because the California Fourth District Court of Appeal found that the prosecutor’s “reprehensible” and prejudicial remarks violated state law. In late January, the California First District Court of Appeal granted DeShawn Reed a new trial due in large part to misconduct by a prosecutor in the Alameda County District Attorney’s office. Then, in late February, the California Second District Court of Appeal reversed the child molestation conviction of Ronald Cowan.

Mr. Cowan’s case originated in San Luis Obispo. A local news outlet, the Tribune, reported that Cowan was arrested in 2012 and tried in 2014, and received a 65-year sentence for molesting the young son of a girlfriend. At trial, the prosecutor misstated one of the most fundamental tenets of American constitutional criminal law: “In rebuttal, during closing argument, the prosecutor told the jury, ‘Let me tell you that presumption (of innocence) is over. Because that presumption is in place only when the charges are read. But now you have heard all the evidence. That presumption is gone.’” The court did not take these misstatements lightly; its opinion stated:

It is misconduct to misinform the jury that the presumption of innocence is “gone” prior to the jury’s deliberations. It strikes at the very heart of our system of criminal justice. Even a novice prosecutor should know not to make such a fallacious statement to the jury. (page 9)

The opinion granting Mr. Cowan a new trial can be read in full here.

Before releasing its latest opinion, the appellate court initially identified the misconduct as “egregious,” but determined that it was not severe enough to require a new trial. In other words, it was “harmless.” Even that initial opinion, however, underscored how far afield Deputy District Attorney Kelly Manderino’s closing arguments went: “To tell the jury that the presumption of innocence is gone prior to the jury’s deliberations is egregious misconduct. . . . Even the most unseasoned prosecutor should know better than to make such an argument to the jury.” The Second District’s initial opinion finding the misconduct harmless was vacated by the California Supreme Court (that order is available to Westlaw subscribers), which ordered the appellate court to “reconsider” the case in light of the higher court’s decision in People v. Centeno.

Assistant District Attorney Lee Cunningham evidently acknowledged that “a ruling of this nature requires reporting to the California State Bar,” which means Ms. Manderino could face professional sanctions. Given how forcefully the appellate court condemned Ms. Manderino’s obviously improper arguments, Mr. Cunningham’s claim in the media about the inherent “risk that [a prosecutor’s] decisions made ‘in the heat of battle’” will be called into question rings hollow. After all, prosecutors daily ridicule defendants’ claims about acting in the “heat of the moment,” labeling them excuses, and seeking to maximize the penalties. Prosecutors are charged with knowing the law, respecting it, and seeking convictions based on evidence and proper procedure, not personal emotion or passion. No legal tenet is more basic than the presumption that a person charged with a crime is innocent until proven guilty. It is difficult to think of a violation of prosecutorial ethics that undermines the truth-seeking process more than stripping altogether the presumption of innocence from jurors charged with determining another person’s fate.

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