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Tennessee Court grants new trial due to outrageous comments in closing.

One of the most important rights of any criminal defendant is the right to a fair trial. An aspect of a fair trial is the accused’s right to remain silent and not testify at trial. The founders who drafted the Bill of Rights recognized that clever prosecutors could likely coerce confessions or create convoluted arguments at trial that could confuse and ensnare the most innocent of defendants.

The right to silence and from self-incrimination is more than just a little annoyance for the prosecution. Prosecutors would prefer if they could force criminal defendants to testify, as that would enable them the ability to manipulate their answers and set up rhetorical scenarios that can create an impression of guilt where there may only be confused facts.

Because of this threat, a prosecutor discussing the defendant’s right not to testify is something the Tennessee Supreme Court has cautioned should be avoided by “any conscientious prosecutor.”

Patrick McNally handled the recent case, State of Tennessee v. Adam Wayne Robinson, M2013-02703-CCA-R3-CD, where the Tennessee Court of Appeals overturned a conviction of a man charged with multiple counts of aggravated sexual battery in a case with weak evidence and cumulative prosecutorial misconduct, “which adversely affected the Defendant’s fundamental right to a fair trial.”

The prosecutor in this case repeatedly brought up the subject of the defendant’s failure to testify, including stating, “What in the hell was he doing behind that apartment building. What were they doing. If they weren’t doing what [B.C.] said they were doing, what were they doing.”

The court found that the prosecutor was strongly implying that the defendant should have answered that question, “What in the hell was he doing behind that apartment building,” which serves the same purpose rhetorically as “When did you stop beating your wife?”

It is asked precisely because there is no “good” answer and any effort to explain the circumstance only produces more statements that can be spun to be heard by the jury as incriminating.

The evidenced produced by the prosecution was not very compelling. The defendant had worked at an apartment complex for seven years, had a good work record and no problems with any tenants.

The mother of the girl that accused him may have had mental health issues and the girl’s testimony was confused. She could not identify the defendant and her testimony conflicted with other statements she made and that her mother made. There was no physical evidence of any sexual abuse.

The Robinson opinion is a text book example of inappropriate closing argument comments. The prosecutor committed additional misconduct according to the court: (1) when she asserted a conviction would send a message, (2) when she vouched for the witnesses, (3) when she declared that the burden of proof was the defendant’s, and stated she only presented cases she believed were true

The prosecutor slanderously stated that “If [the Defendant] confesses to him [the defense attorney] in the hallway this morning, his [the defense attorney] job is still to do the best job he can to defend him.” This both impermissibly belittles the defense and implies that this is what all criminal defendants do, and that their attorneys defend them in spite of knowing of this guilt.

The court of appeals concluded, quoting another Tennessee case, “that the prosecutor’s improper comments were so egregious as to permeate the jury’s verdict to the Appellant’s detriment.”

Sex crime cases involving a child are among the most inflammatory charges anyone can face. The mere allegation can have a devastating effect on the accused and their family. This case cost the man accused his job and his reputation. A competent and vigorous appellate lawyer is necessary to reverse convictions like this involving prosecutorial misconduct.

Patrick McNally is an experienced attorney who has represented clients in the Tennessee Court of Criminal Appeals, Tennessee Supreme Court and the Sixth Circuit Court of Appeals. For that aggressive defense at trial or on appeal, speak with attorney Patrick T. McNally about your case. He will review your facts and explain the options and strategies for your trial or appeal. He understands what is necessary to dismantle the prosecution’s case and demonstrate errors from the trial court or overreaching by the prosecutor.