Tulsa Attorney BlogOklahoma Court Reverses Sentence on Tulsa Prosecutor’s Misconduct

Prosecutor Kicked a Doll in Closing Arguments

Tulsa prosecutorial misconductRoughhousing a doll in court is probably not the best way to win a case. An Assistant District Attorney’s antics during a Tulsa trial were too far over the top even for Oklahoma’s often prosecution-friendly Court of Criminal Appeals.

In a detailed 30-page opinion, the court overturned a defendant’s life-without-parole sentence because of the prosecutor’s theatrical closing arguments. Although it was not published as precedent, the case summarizes standards that may be used to identify prosecutorial misconduct in Oklahoma trial arguments.

Even without courtroom theatrics, the charges for which the Tulsa father was on trial are among those that can weigh most heavily on jurors’ sympathies. The father was charged with First Degree Child Abuse Murder.

As with many child abuse cases, medical assessment of the two-month-old infant’s injuries were the primary evidence presented at trial. Other evidence was largely circumstantial. The prosecutor played on that lack of direct evidence in closing arguments, repeatedly asking how the infant died while reenacting possible scenarios.

After a hearing to establish whether the prosecutor had used a demonstrative aid and how, the appeals court was faced with varied interpretations of exactly how dramatic the reenactments had been.

“[W]hat is clear from the witness’ descriptions is that the prosecutor did just what the trial transcript suggests: that she simulated various acts of physical abuse, including slapping the doll, kicking the doll across the floor and/or against the wall, and hitting the doll’s head against a table,” appeals judges concluded.

Appeals to Emotion Can Cause Reversible Error

Several problems arose from the theatrical arguments. The doll had not been introduced as evidence. Nobody had testified that the infant had been kicked. Arguments reinforced by kicking a doll had nothing to do with evidence presented at trial.

Except for a skull fracture that caused her death, medical experts had testified that all of the child’s visible injuries had occurred earlier. The prosecutor argued the defendant must have known someone had caused those earlier injuries, but the reenactment implied he caused them.

It was simply not a fair interpretation of the evidence, the appeals judges concluded. “[T]he true goal of the presentation was dramatic affect – not discussion of the evidence.”

“We cannot condone theatrical demonstration of speculative theories, which are calculated to encourage emotional reaction from the jurors.”

The court recited Oklahoma and U.S. case law with regard to closing arguments. Sure, “[c]ounsel are generally afforded wide latitude in their arguments to a jury, and may make reasonable inferences from the evidence that has been presented.”

Wide latitude to make reasonable inferences, however, does not mean a license to tug on jurors’ heartstrings. Appeals to emotion can cause reversible errors.

Drama Can be Prosecutorial Misconduct in Oklahoma

Any overly graphic or theatrical closing argument can be problematic. Even the dramatic use of exhibits entered during a trial can be inappropriate prosecutorial misconduct in Oklahoma.

In a 1982 case, the Oklahoma appeals court granted a new trial after a prosecutor stabbed a crime scene photo. In other cases, the court has cast a wary eye toward theatrical closing arguments, but did not afford defendants relief as a result.

The court in 2006 said it could not condone a prosecutor pointing his finger at a juror’s head to illustrate a homicidal act. In 1999 the court characterized as “theatrical and graphic” a prosecutor striking the floor with a baseball bat allegedly used in a murder.

In 1992, the court concluded it was “overly dramatic” for a prosecutor to dry-fire a murder weapon in the courtroom. In none of those cases, however, did the court reverse any part of lower court rulings based on prosecutors’ conduct.

In 2000, the appeals court said it is reluctant to admit crime scene reenactments that illustrate hypothetical situations. Introducing props in arguments to fuel speculation about how a crime might have happened “is especially dangerous” the court stated.

Demonstrative aids may be used in testimony when they do not mislead or confuse a jury. The court has previously cautioned, however, against using in arguments aids that have not been introduced during the trial. Evidence conflated with arguments can result in errors.

Ineffective Counsel Failed to Object

The appeal argued both that prosecutors had overstepped boundaries of proper conduct and that the defendant’s trail attorney had been ineffective by not objecting. In a dissenting opinion, Judge Robert Hudson observed that the defense attorney had testified he did not object for strategic reasons. The defense lawyer thought jurors would recognize the display as “over the top.”

The appeals court’s majority, however, said the failure to object could not be deemed a reasonable strategy. Had defense objected, the sentencing phase of the trial might have produced a different result.

Judge Gary Lumpkin joined Harris’ dissent to reversing the trial court’s sentencing decision. The court unanimously agreed the jury would have nonetheless found the father guilty had the prosecutor not flung a doll around the courtroom in closing arguments, but a majority believed the display could have affected jurors recommendation of life without parole for Gregory Antwon O’Neal in Case No. F-2013-952.

The two dissenting judges lambasted the court’s decision to reverse O’Neal’s sentence. There was no evidence jurors would have decided otherwise without the drama, Harris wrote. If the prosecutor’s infant doll show had been that outrageous, the trial judge would have stopped it, he said.

Harris accused the majority of “micromanaging” prosecutors’ closing arguments, urging his fellow judges not to program prosecutors as if they were robots.

In the final analysis, Oklahoma appeals judges unanimously agreed it is okay for prosecutors to offer a smorgasbord of theories about how a crime might have happened, then urge jurors to agree beyond a reasonable doubt that one of the theories must be true. Only a scant majority agreed prosecutors cannot put on a puppet show during a closing arguments and urge jurors to send someone to prison for life without parole based on what the prosecutor did to a puppet.

They all seemed to somewhat agree, however, that when prosecutors put on an inappropriate puppet show, it is an Oklahoma defense attorney‘s job to stand up and say stop the show.

Free Consultation: Tulsa Lawyers

If you are facing criminal charges in Tulsa or anywhere in Oklahoma, you need an ally in court who will call for fair play when prosecutors get out of line. If you have been convicted of a crime and prosecutors argued facts not in evidence, or appealed to jurors emotion instead their interpretation of evidence, you may have grounds to appeal your conviction or your sentence.

For a free consultation with a Tulsa lawyer who can represent you in criminal matters or on appeal, contact a defense attorney at Wirth Law Office today by calling (918) 879-1681 or send your question using the form at the top of this page.

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