Prosecutorial Misconduct in Death Penalty
Category > Prosecutorial Misconduct in Death Penalty
The prosecutor committed misconduct by playing emotional music with the video presentation during penalty phase closing argument. The prosecutor committed misconduct during closing argument by showing the jury a montage of the victim’s life accompanied by stirring emotional music. The courts can permit a video showing a realistic portrayal of the victim’s life, but should not permit irrelevant background music that enhances the emotion of the presentation. The error was harmless given the strength of the penalty phase evidence.id: 24457
The prosecutor erred at the penalty phase by reading an emotional imaginary letter to the victim where he invited the jurors to adopt the victim posthumously.The prosecutor erred during penalty phase closing argument by reading an imaginary letter to the deceased child victim. The “letter” was highly emotional and summoned the jury to “adopt” the victim as the benevolent family she never had. The court should have curtailed the extended and melodramatic oration couched as a letter to the victim, by sustaining defense counsel’s objections. However, the error was harmless as the remarks were not central to the case he presented in closing argument and followed comments on the defense penalty phase witnesses.id: 22215
The prosecutor erred in argument by saying the capital defendant could get parole if the jury didn’t find the special circumstance allegation to be true.The prosecutor improperly informed the jury during argument that the defendant could be released on parole if it did not find the special circumstance allegation true. However, the court later admonished the jury not to consider punishment when considering guilt, so the error was cured.id: 22048
The prosecutor committed misconduct at the penalty phase by improperly injecting evidence of a throat cutting in rebuttal. The prosecutor committed misconduct at the penalty phase by introducing in rebuttal inflammatory aggravating evidence regarding “a throat cutting” against a person that defendant had not referred to earlier. However, the error was not prejudicial where the court immediately repeated the word “sustained” several times and admonished the jurors to disregard the question.id: 21679
The prosecutor erred in penalty phase closing argument by suggesting the Bible supports imposition of the death penalty.The prosecutor committed misconduct during closing argument by suggesting that the Bible supports imposition of the death penalty. However, the error was harmless where the remarks were brief when compared to the careful and extended discussion of the appropriate statutory factors and the overwhelming nature of the factors in aggravation.id: 21666
The prosecutor erred at the penalty phase when questioning a deputy sheriff about defendant’s reclassification by referring to him as “a danger”.Defendant was reclassified in the jail because of an incident where he threatened to stab a fellow inmate who had been antagonizing him. When questioning the deputy about the reclassification the prosecutor erred by referring to defendant as “a danger”. However, the court’s admonition to disregard the comment cured any error.id: 21255
The prosecutor erred in penalty phase argument by injecting personal beliefs and a comment by his wife.The prosecutor may have erred in penalty phase argument by commenting that due to the manner in which he was raised, he could not feel much sympathy for the defendant, and that his wife urged him to remind they jury against being what Rush Limbaugh calls “a rescuer.” The issue was forfeited for lack of an objection, but any error was harmless since the comments were brief and the jurors were properly instructed.id: 20451
The prosecutor's improper argument that the Bible required the death penalty was harmless in light of the remainder of the argument and the fact that defense counsel also invoked religious principles in his argument.Defendant argued the trial court committed misconduct during penalty phase closing argument by suggesting the Bible not only
authorized capital punishment, but required it - a lesser sentence he asserted would shrink the jurors' obligation and cheapen the value of life. However, any error was harmless where the biblical comments were part of a longer appropriate argument, and defense counsel also invoked religious principles in closing argument.id: 19798
The prosecutor erred by asking the jurors to imagine the thoughts of the victims in their last seconds of life. The prosecutor erred at the penalty phase in asking the jurors to
imagine the thoughts of the victims in their last seconds of life, but the error was harmless since the comment was brief and the evidence of guilt was overwhelming. The earlier question about imagining themselves in the position of the victims was not improper since defense counsel had earlier asked them to do the same.id: 19618
Prosecutor erred in arguing the absence of two mitigating factors to be factors in aggravation.The prosecutor improperly labeled the absence of any extreme mental disturbance or of acting under the substantial domination of another person, as aggravating factors. The error did not require reversal where defense counsel failed to object and the error could not, in reasonable possibility, have affected the jury's penalty verdict.id: 14521
Prosecutor improperly argued for the death penalty as a deterrent.The prosecutor erred in arguing the jury should impose the death penalty to deter felons from murdering their victims. However, the misconduct could have been cured by a timely objection and admonition.id: 14529
Prosecutor's comments on victim's personal characteristics mandated reversal of death sentence.In closing argument, the prosecutor read to the jury from a religious tract carried by the victim when he was killed, and commented on a voter registration card also carried by the victim. In a 5-4 decision written by Justice Brennan, the Supreme Court reversed. The majority noted that just as in <i>Booth v. Maryland</i>, 482 U.S. 496 (1987), allowing the jury to rely on these comments could result in imposing the death penalty because of factors about which the defendant was unaware, and that were irrelevant to the decision to kill. Justice White concurred, stating that [u]nless Booth is to be overruled, the judgment below must be affirmed. Justices O'Connor, Rehnquist and Kennedy dissented, arguing that Booth was distinguishable. Justice Scalia dissented separately, arguing that Booth should be overruled.id: 14538
Prosecutor committed misconduct by arguing general deterrence during the penalty argument.The prosecutor commented that the death penalty generally serves as a deterrent. The court then instructed the prosecutor that general deterrence was not a proper subject for argument. The court then informed the jurors not to consider the effects of punishment in this case as to others. Any misconduct was cured by the court's admonition. Moreover, the prosecutor's similar remarks after the admonition were not prejudicial given the carry-over effect of the court's admonition that immediately preceded the improper statements.id: 14503
Prosecutor's comments that if defendant received life without parole, he would always be seeking release improperly referred to matters extraneous to penalty determination.The prosecutor erred at the penalty phase in arguing that if defendant received life without parole, he would spend the rest of his life figuring ways to secure his release. A jury should not be invited to speculate upon future unpredictable events, such as the defendant's possible future release or the threat of escape. However, the comments were too indefinite to have prejudiced defendant. He did not refer to the actual possibility of release by such means as escape or commutation, but averred only as a matter of common sense to the reality that an imprisoned criminal will probably always be seeking release.id: 14539
Prosecutor erred in urging the jury to impose the death penalty to foreclose the possibility that defendant might someday be released form prison.During closing argument at the penalty phase, the prosecutor, based on the testimony of a defense psychiatric expert, stated that defendant "has hopes and dreams of getting a pardon in this case right from President Reagan." The obvious implication of the argument was that the jury had to impose the death penalty to foreclose the possibility, albeit remote, that defendant might somehow be released from prison. The suggestion was misleading because the President does not have the power to pardon persons convicted of crimes under state law. Moreover, it invited the jury to consider speculative matters. The error was not prejudicial where the argument was far fetched and the jury was otherwise properly instructed that life without parole means exactly that.id: 14527
Prosecutor erred in paraphrasing a Biblical passage that is commonly understood as providing justification for the imposition of the death penalty.During closing argument the prosecutor paraphrased Biblical authority to advocate imposition of the death penalty. The People sought to justify the argument as appropriate rebuttal to defense counsel's argument - "Don't play God." However, the argument was clearly improper by exhorting the jury to consider factors outside of Penal Code section 190.3 in making its penalty determination. The error did not require reversal as there was little chance that the jury would have reached a different verdict had the misconduct not occurred.id: 14526
Argument that capital punishment was supported in the Old Testament was improper.During penalty phase argument the prosecutor stated, "I could talk to you about scripture and verse from the Old Testament that supports capital punishment, but I'm not." Such argument is improper because it tends to diminish the jury's sense of responsibility for its verdict and to imply that another, higher law should be applied in capital cases. However, when considered in context the remarks were brief and not prejudicial.id: 14489
Prosecutor incorrectly told jury that if he failed to prove murder it could still convict defendant of involuntary manslaughter.The prosecutor told the guilt phase jury that if he failed to prove the elements of murder the jury could still convict defendant of the lesser crime of involuntary manslaughter. But we only get to that point if there is no evidence or no proof of first or second degree murder. If there is, then its' the greater crime. This statement is incorrect. If the prosecutor did not prove that defendant committed murder the jury was required to acquit him thereof. However, the error was not prejudicial since the court subsequently instructed the jurors correctly.id: 14531
An appeal to the jury to view the crime through the eyes of the victim is misconduct at the guilt phase of a trial.During guilt phase argument the prosector erred in urging the jurors to imagine the victim's feelings during the commission of the heinous crimes. An appeal for sympathy for the victim is out of place during an objective determination of guilt. However, the error was not prejudicial as this was but a single reference in a closing argument that extended over a period of four days.id: 14485
Prosecutor erred in arguing at penalty phase that defendant's troubled childhood had no mitigating effect on the instant crimes.Defendant argued the prosecutor committed misconduct in stating during penalty phase closing argument that evidence of defendant's physical, emotional and sexual abuse as a child had no mitigating effect on the instant crimes. The prosecutor's comment that the troubled background of defendant did not constitute a mitigating factor might have tended to suggest erroneously that the jury could not consider such evidence in mitigation. However, any error was harmless given that defense counsel's argument to the jury vigorously urged that defendant's background had mitigating relevance and the trial court specifically instructed that the jury could consider as mitigating the evidence relating to defendant's prior history and childhood.id: 14525
Prosecutor erred in arguing the death penalty was sanctioned by the Bible, and by God.Defendant argued the prosecutor violated his constitutional rights to due process, a fair trial, and a reliable penalty verdict by invoking Biblical authority in his closing argument. The prosecutor argued the passage was little more than a Biblical history of the death penalty and therefore innocuous. However, the prosecutor's message was not only that capital punishment existed in the Bible, but that it was sanctioned by it, and by God. This was clearly improper. However, the remarks were not prejudicial. Following the improper passage, the prosecutor embarked upon a lengthy and detailed argument devoted exclusively to the evidence in aggravation and urged a sentence of death based upon defendant's moral culpability for the crimes in light of the statutory factors.id: 14522
Prosecutor improperly quoted one of the jurors during penalty phase closing argument.Defendant argued the prosecutor erred in penalty phase closing argument by reading a quote to the jury that was taken from one of the sitting jurors comments during voir dire. Defendant claimed this was overt flattery of a sitting juror. The argument was improper. However, the quote contained nothing improper. Moreover, neither the quote nor the argument suggested that a juror should not engage in the required individualized weighing process.id: 14530
Prosecutor impermissibly argued defendant's denial of guilt demonstrated the absence of remorse.The prosecutor impermissibly argued that defendant's denial of guilt for the murder demonstrated an absence of remorse supporting the death sentence and trial counsel rendered ineffective assistance in failing to object to the remark. However, the failure to object was probably a conscious tactical decision to not draw the jury's attention to the fleeting comment.id: 14528
Prosecutor's reference to biblical authority in closing argument at the penalty phase was misconduct.The prosecutor erred during closing arguments in using biblical references to support the imposition of the death penalty. However, the error was not prejudicial where the prosecutor's argument focused primarily on the brutal circumstances of the crime. The brief allusions to biblical law amounted to little more than commonplaces to emphasize his point that the jurors should judge defendant primarily by his acts.id: 16306
Prosecutor committed misconduct in citing biblical passages sanctioning capital punishment and describing an account of retribution in an afterlife.Stating he wanted to alleviate the jury's "pang of conscience" the prosecutor read various biblical passages apparently sanctioning capital punishment. An appeal to religious authority in support of the death penalty is improper because it tends to diminish the jury's personal sense of responsibility for the verdict. Moreover, the prosecutor thereafter asked the jurors to imagine a meeting in the afterlife between defendant and the victim where the victim asked "why"? This otherworldly account of retribution following the biblical references further reinforced the notion that some higher law favored the death penalty. However, the prosecutor's misconduct was harmless given the magnitude of penalty phase evidence against defendant and the relatively minor role of the religious argument.id: 16304
Prosecutor's error in invoking biblical authority for a death verdict was harmless where the defense did not object and the improper references were part of a longer argument that properly focused on aggravation and mitigation.The prosecutor committed misconduct during his closing argument at the penalty phase by invoking biblical authority for a verdict of death. However, the error did not require reversal since trial counsel did not object to the improper argument and the record did not show counsel was ineffective by failing to object. Moreover, the extensive improper argument was part of a longer argument that properly focused upon the factors in aggravation and mitigation.id: 16813
Prosecutor erred in commenting on defense expert's failure to testify that cocaine use could have caused defendant to commit the crimes.The prosecutor committed misconduct in commenting on the failure of the defense expert to testify that defendant's cocaine use could have caused him to commit the crimes. Penal Code section 29 prohibits an expert from giving an opinion about the ultimate fact whether a defendant had the mental state needed for a conviction. However the error was harmless in light of the strength of the evidence of premeditation, deliberation, and intent to kill.id: 15924
Defendant was not prejudiced by the potential Griffin error by the prosecutor's penalty phase cross-examination questions referring to the crimes, which defendant never mentioned on direct examination.Defendant did not testify at the guilt phase. At the penalty phase he testified only about the circumstances of his life prior to the murders. The prosecutor attempted, unsuccessfully, to cross-examine defendant about the details of the murders. Defendant argued that the prosecutor's questions violated the rule set forth in Griffin v. California (1965) 380 U.S. 609. Assuming that the prosecutor's questioning was improper, there was no harm where the questioning was brief, the defense objections were sustained and the prosecutor made no reference to the exchange in closing argument.id: 18255
Pervasive misconduct by the prosecutor, including misstating facts and law, and derogatory comments toward defense counsel, required reversal of conviction and death sentence.Defendant was convicted of special circumstances murder and sentenced to death. The prosecutor committed several instances of misconduct. She misstated the evidence by attributing the blood found on the murder weapon to be the murder victim's, she mischaracterized the law and evidence by claiming no similar crimes had been committed since defendant's arrest, she misstated the law on reasonable doubt and circumstantial evidence, she made repeated derogatory remarks about defense counsel before the jury, she intimidated a defense witness by threatening a perjury prosecution, she relied on Biblical doctrine at the penalty phase and misrepresented defendant's prior record. The prosecutorial misconduct along with other errors required reversal of defendant's conviction.id: 15915
Updated 7/12/2024The prosecutor’s name calling of the defendant during penalty phase argument permissibly attacked the mitigating evidence.Defendant argued the prosecutor committed misconduct during penalty phase closing argument by referring to him with derogatory epithets including “tattooed pervert,” “tattooed barbarian” and a “tattooed hyena.” However, this was merely name-calling that permissibly attacked the mitigating evidence, and focused on the details of the aggravating evidence.id: 28326
The prosecution did not commit misconduct during closing argument by likening defendant to a dangerous animal. During closing arguments, the prosecutor told the story of a Bengal tiger who looked harmless while sunning at the zoo, but looked very different when standing over its kill, with blood dripping from its mouth. This was not an improper attempt to dehumanize the defendant.id: 25784
Prosecutor’s reference to 9/11 and bin Laden at the Egyptian defendant’s capital trial were unfortunate but brief, and no comparison was made between the events.Defendant was an Egyptian man tried for capital murder shortly after the terrorist attacks on September 11, 2001. The prosecutor’s brief comments regarding Osama bin Laden, Al Queda, and the terrorists who perpetuated the attacks were ill-advised but he never suggested the present incident was somehow comparable to that event.id: 25751
The prosecutor did not commit Griffin error by comment at the penalty phase that no mitigation witness heard defendant express remorse.During penalty phase closing argument at defendant’s capital trial, the prosecutor commented that none of the mitigation witnesses testified they heard defendant express remorse at any point. This comment referred to statements made to his parents outside of the proceedings, and not to his failure to show remorse by not testifying.id: 25766
The prosecutor did not err by providing notice of aggravating evidence late, but over a month before the capital trial began.Defendant argued the prosecution purposely delayed in turning over police reports it sought to use in aggravation during the penalty phase of defendant’s capital trial. While there had been some early delay due to a missing report, the prosecution gave informed notice of the evidence (the name of a detective) three months before jury selection and gave formal notice one month before jury selection began. The trial court did not err by finding the prosecution gave notice of the evidence to be introduced at the penalty phase within a reasonable time.id: 25540
The prosecutor did not err by commenting during penalty phase closing argument on the absence of any of defendant’s family members. During penalty phase closing argument, the prosecutor commented on the absence of any of the defendant’s family members from the trial. This was a permissible comment on the defendant’s failure to call logical witnesses.id: 25098
The prosecutor did not commit misconduct during final argument by noting that defendant claimed innocence at the guilt phase but changed his story at the penalty phase.During penalty phase rebuttal argument, the prosecutor emphasized that trial counsel insisted at the guilt phase that defendant was innocent, but now admits guilt, and that he was trying to fool the jurors. While the argument suggested defense counsel was trying to mislead the jurors, it did not claim defense counsel had fabricated a defense, and was not fundamentally unfair.id: 25099
The prosecutor did not commit misconduct by briefly arguing during the penalty phase that the victims were entitled to vengeance. Defendant argued the prosecutor committed misconduct during penalty phase closing argument by claiming that the victims were owed vengeance. However, there was no error as prosecutorial references to community vengeance are not misconduct if they are brief and do not form the principal basis for advocating the death penalty.id: 24790
The prosecutor did not err during penalty phase closing argument by asking for “justice for the victims.”The prosecutor did not commit misconduct during penalty phase closing argument by asking for “justice for the victims.” Contrary to defendant’s claim, this was not like presenting the evidence that the victim would believe death was the proper verdict, which is impermissible.id: 24541
The prediction of future dangerousness based on the evidence was properly argued even though not listed as an aggravating factor.Defendant argued the prosecutor deceived the trial court by seeking admission of a statement he made to rehabilitate a witness’s credibility and then using it instead to argue defendant’s future dangerousness. However, there was no misconduct by drawing a reasonable inference from the properly admitted evidence even though he did not mention that inference when seeking admissibility of the statement. And a prediction of dangerousness based on properly admitted evidence may be argued even though it is not listed as an aggravating factor.id: 24294
The prosecutor did not commit misconduct by arguing at the penalty phase that defendant would get a “freebie” for the third murder if the jury failed to return a death verdict.Defendant argued the prosecutor committed misconduct by arguing that the murder of the third victim would be a “freebie” if the jury did not return a death verdict. However, in context, the jury would likely have understood the prosecutor to be arguing that when the third murder and robbery were added to jury’s penalty consideration, that death was appropriate - not that it was the jury’s responsibility to impose separate punishment for the murder.id: 23859
The prosecution did not commit misconduct by arguing the death penalty was required to prevent people from killing witnesses and compromising the integrity of the system. The prosecution did not err by arguing on the penalty phase that a death verdict was necessary to protect the victim’s fellow gang members, as it was intended to convey that the death penalty is a required to deter people from killing witnesses and compromising the integrity of the system. id: 23253
Any error in denying the motion to dismiss gun use allegations based on prosecutor’s inconsistent theories regarding the actual killer was harmless.Before the capital trial, defendant moved to dismiss the allegations that he personally used a firearm during the killing of Young because the same prosecutor had filed the same allegation against his severed codefendant and argued at the codefendant’s trial that he had fired the single fatal shot. The jury rejected the allegation in codefendant’s trial. Defendant argued prosecutorial misconduct in arguing inconsistent theories. Any error here was harmless where the ruling clearly had no impact on the guilt or penalty phase verdicts.id: 22806
The prosecutor did not commit misconduct during penalty phase closing argument by suggesting what the victim’s children might write in a letter to the victim. Defendant argued that the prosecutor committed misconduct at the penalty phase by suggesting in closing argument what the victim’s children might say in letters they would write to him. The court did not condone the tactic but found no misconduct. Instead, the “letters” were a rhetorical device to highlight what the children might write.id: 22420
Defendant did not preserve claims of prosecutorial misconduct where he failed to impose contemporaneous objections but filed a motion before the argument seeking to restrict various comments.Defendant argued the prosecutor committed misconduct in several respects at the penalty phase. While defendant did not make contemporaneous objections, he did file a motion seeking to restrict the scope of the prosecutor’s argument. However, this motion did not preserve the claims for review especially where he made no post argument objections. In any event, there was no misconduct as the comparison between the jurors oaths and the deputy sheriff/victim’s oath as a peace officer was not an attempt to create an improper allowance between the two. Moreover, the reference to the victim’s status did not suggest the jurors’ lives were in any danger. id: 21317
The prosecutor’s reference to defendant as a “sociopath” during penalty phase closing argument was not an improper expert opinion. The prosecutor did not commit misconduct during penalty phase closing argument by referring to defendant as a “sociopath”. He was using language in common currency to describe his interpretation of the evidence, and not improperly stating an expert opinion. id: 21256
The prosecutor did not commit misconduct during penalty phase closing argument by quoting from a magazine article rejecting the idea of determinism.During penalty phase closing argument, the prosecutor read a passage from a magazine article entitled “Sorry I killed you but I had a bad childhood.” Contrary to defendant’s claim, this was not an attack on the legitimacy of mitigating evidence. It was another way of addressing a common argument about free will and determinism.id: 21254
The prosecutor did not commit misconduct at the penalty phase by inviting jurors to put themselves in the shoes of the victim’s family and imagine the impact of the crime.During penalty phase argument, the prosecutor asked the jurors to think of how they would feel if someone they loved dearly died in a gutter like the victim did choking on his own blood. The prosecutor may ask penalty phase jurors to put themselves in the place of the victim’s family and consider how the murder affected the victim’s relatives.id: 20831
The prosecutor did not err during penalty phase closing argument in referring to a book that was not in evidence.The prosecutor did not err at the penalty phase in referring to a new book called A Nation Of Victims. While the book was not admitted into evidence, an advocate may make comments during argument regarding common experience, history or literature.id: 20452
Prosecutor's brief death sentence reference "if not this case, then what case?" did not open the door for extensive defense argument on comparative culpability.During closing argument the prosecutor argued death was appropriate and stated if not this case, then what case? Defendant argued the court subsequently erred in limiting defense argument comparing punishment for this crime with that received by other multiple murderers. He claimed such argument was appropriate to rebut the prosecutor's assertion. However, the prosecutor's reference was brief and did not amount to evidence on the issue of comparative culpability. The court did not err in limiting defense argument.id: 14533
The prosecutor committed misconduct by telling the jurors to consider themselves victims. The prosecutor committed misconduct during the penalty phase closing argument by telling the jurors to consider themselves victims of the defendant. However, the trial court properly admonished the jurors to disregard the statement.id: 19985
The prosecutor did not commit misconduct in argument by appealing to "community vengeance" and "collective conscience". The prosecutor did not commit misconduct in his penalty phase closing argument by informing the jurors that they act as the
community's collective conscience and that vengeance is a vital expression of the community's outrage.id: 19799
The prosecutor did not commit misconduct during voir dire by admonishing jurors to notify the court if they learned others changed their mind about their ability to vote for death. The prosecutor did not commit misconduct in commenting to jurors during voir dire that they should notify the court if it discovered another juror decided he or she could no longer vote for the death penalty. Defendant argued the failure to similarly ask jurors to do the same if they found someone could no longer vote for life, and the court's support for the
prosecutor's comment led to the indoctrination of a pro death jury. However, the comment was not deceptive or unfair, and was not an attempt to persuade the jurors to vote for death before
hearing the evidence.id: 19747
Prosecutor's arguing absence of remorse at the penalty phase was not improper where he did not suggest it could be considered as an aggravating factor. During penalty phase closing arguments, the prosecutor emphasized that because defendant had shown no remorse, the jury should take his mitigating evidence (a plea for mercy from his family) with a grain of salt. This was distinguishable from a case where the prosecutor argued absence of remorse as an aggravating factor, and was permissible argument.id: 19703
There was no prejudicial misconduct where the prosecutor's argument was unlikely to have misled the jurors into thinking they could consider penalty at the guilt phase.The prosecutor may have erred in arguing to the guilt phase jury that there would be no penalty phase trial if they found defendant guilty of second degree murders, but there was
no prejudice where it was unlikely the remark misled the jurors into thinking they could consider punishment in their deliberations.id: 19674
The prosecutor did not improperly invoke religion in closing argument by focusing on the fact that the murder took place in a church.The prosecutor did not improperly invoke divine law as a basis for death where the victims were killed in church which she referred to as a "house of God."id: 19251
The prosecutor did not err in penalty phase argument by emphasizing a philosophy that we are collectively responsible to see that justice is served.In penalty phase closing argument, the prosecutor referred to several philosophers included Aryeh Neir who rejected the notion that it does no good to punish a murderer because it will not bring the victim back to the community. This was not the equivalent of a biblical passage demanding the death penalty. The prosecutor was merely encouraging the jurors to embrace a philosophy that we are collectively responsible to see that justice is served and the rule of law implemented.id: 19232
The prosecutor did not commit misconduct at the penalty phase by arguing that everyone has suffered hardships. The prosecutor did not commit misconduct by arguing during the penalty phase that everyone has suffered hardships in their lives. The claim, to which defense counsel failed to object, did not suggest the jury could not legally consider defendant's
past hardships and did not disparage the legal system. Moreover, the prosecutor did not misstate the law or improperly impugn defense counsel's integrity by warning jurors not be distracted by the defense emphasis on defendant's hardships.id: 19149
The prosecutor's comment that defendant was a sexual sadist was not a medical diagnosis sought to be used improperly as an aggravating factor at the penalty phase.During penalty phase closing argument, the prosecutor referred to defendant as a sexual sadist. Defendant argued it was improper to argue he suffered from a mental disorder and the prosecutor improperly urged the jury to consider the disorder as an aggravating factor. However, the prosecutor's argument related to defendant's conduct at the time he murdered the victim and could not reasonably have been construed as a medical diagnosis that defendant suffered from sexual sadism.id: 18962
Prosecutor's reference to a "gut reaction" did not suggest the jurors should make an arbitrary sentencing choice.The prosecutor invited the penalty phase jurors to consider their gut reactions when selecting a penalty. Defendant argued that reference allowed the jury to rest its decision on an arbitrary and capricious basis. However, the reference to a "gut reaction," in combination with other factors, in no way suggested the jurors should make a quick or arbitrary choice.id: 18910
The prosecutor did not err by objecting to defense counsel's voir dire questions which sought to commit prospective jurors to vote in a certain way under a set of facts.Defendant argued the prosecutor committed misconduct by objecting to defense counsel's questions during voir dire. However, insofar as counsel's questions sought to commit a prospective juror to vote in a certain way given a particular set of facts, the questions were improper.id: 18743
Prosecutor's statements during voir dire did not inform the jurors that the ultimate responsibility for the death penalty decision rested elsewhere.Defendant argued the prosecutor erred by informing jurors during voir dire that the ultimate responsibility for the death decision rested with the court. Despite a couple of ambiguous references in this regard, the other instructions the jurors would later receive, and the arguments of counsel emphasized the ultimate responsibility for the decision was with the jury.id: 18720
The prosecutor did not commit misconduct by having a witness arrested prior to the penalty phase where it was the prosecution that initially sought to call the witness to present aggravating evidence.Defendant argued the prosecutor committed misconduct by preventing potential defense witness Hancock from testifying by having him arrested for another shooting which led to his expected invocation of the privilege against self-incrimination. However, defendant failed to show the witness's testimony would have been material and favorable to the defense at the penalty phase. It was the prosecution who identified Hancock as a witness it intended to call to present aggravating evidence at the penalty phase. And Hancock's testimony at the guilt phase, which was impeached, undermined defendant's claim that his testimony during the penalty phase would have been material and favorable to the defense.id: 18686
Prosecutor did not err by asking his witness if he was aware of the provision that provides a death sentence for someone who commits perjury in a capital case.Defendant argued the prosecutor erred by referring to Penal Code section 128 when questioning a prosecution witness at defendant's capital trial. That provision provides for a death or LWOP sentence for anyone who willfully perjures himself in order to secure a death sentence for an innocent person. Defendant argues that section 128 is not a meaningful deterrent to perjury. However, despite the practical difficulties in carrying out such a prosecution, the stakes are high and may indeed deter a potential perjurer. The prosecutor did not err in asking the witness if he was aware of the provision.id: 18556
The prosecutor did not err in quoting Lord Denning's views on punishment during penalty phase closing argument.During penalty phase closing argument the prosecutor quoted Lord Denning, a judge "in the old Court of Appeal in England." The quote suggested that punishment expresses the revulsion felt by citizens for the wrongful acts, and that some crimes are so outrageous that punishment must be adequate regardless of whether it serves as a deterrent. The argument was not improper and did not likely obscure the jury's proper understanding of its function at the penalty phase.id: 18415
Prosecutor did not compare defendant to Hitler in penalty phase closing argument, he simply tested the logic of the defense argument.In penalty phase closing argument the prosecutor responded to defense counsel's claim that you don't commit a crime such as this unless something is wrong with you. The prosecutor suggested that under this logic Adolph Hitler would not be a candidate for the death penalty because something must be really wrong with a person who commits genocide. The argument was not improper because the prosecutor did not compare defendant to Hitler, he was simply testing the logic of the defense argument.id: 18420
The prosecutor did not err in asking for equal mercy during the penalty phase closing argument.It was not inappropriate for the prosecutor to urge in his penalty phase closing argument that the jury show the defendant the same degree of mercy he showed the victim.id: 18383
The prosecutor's improper reference to his special knowledge during penalty phase closing argument was brief and harmless.The prosecutor committed misconduct during the penalty phase closing argument by relying on his personal knowledge to describe the procedures of a guilty plea, for the assignment of persons to the Department of Corrections, and for reporting child abuse. However, the error was harmless and the prosecutor's improper references were brief, involving largely collateral matters, and the jurors were instructed that the attorney's statements were not evidence.id: 18257
The prosecutor did not commit misconduct at the penalty phase by asking a doctor testifying for the co-defendant whether defendant met the profile of a serial killer.During the penalty phase, a psychologist testified for the female co-defendant that serial killers are almost exclusively male. Defendant argued the prosecutor committed misconduct by eliciting this opinion which was an impermissible effort to induce the jury to use the expert's testimony against him. However, the prosecutor properly sought to impeach the expert's opinion that the co-defendant did not meet the criteria for a diagnosis of antisocial personality disorder and could be properly classified as a serial killer. He did not ask the expert whether defendant could be so classified.id: 18061
The prosecutor's comment that the defense selected was evidence of sociopathy was a comment on the evidence rather than an expert diagnosis.Defendant argued the prosecutor committed misconduct at the penalty phase by arguing the fact that defendant was using a duress defense was itself evidence of sociopathy. Contrary to defendant's claim, the characterization of defendant's personality did not purport to express a professional expertise, but instead constituted permissible comment on the evidence.id: 18063
The prosecution did not err during penalty phase closing argument by highlighting the deceased police officer's status.Defendant was convicted of killing a police officer and sentenced to death. The prosecutor did not commit misconduct by highlighting the victim's status during argument and reminding the juror that we rely on the police to keep us safe.
id: 17975
The prosecutor did not commit prejudicial error at the penalty phase by questioning a defense witness about a biblical passage where the wrongdoer was killed.Defendant argued the prosecutor committed misconduct at the penalty phase by asking a defense witness who mentioned the Bible whether God forgave one of the thieves crucified with Jesus, but nevertheless allowed him to die. Defense counsel did not object, and on redirect asked a separate question about a life punishment for Cain after he killed Abel. Neither side was permitted to refer to Biblical authority during argument. Any error was harmless where it was not reasonably possible the defendant would have received a more favorable verdict had the prosecutor not asked the questions.id: 17863
The prosecutor did not err by telling the penalty phase jury that the moral blame for the crimes and their consequences rested with the defendant, not the jurors.The prosecutor did not shift the responsibility of imposing the death penalty away from the jury by arguing at the penalty phase "It's the punishment that this defendant has imposed upon himself." id: 17797
Prosecutor did not err by arguing a potential penalty witness had been intimidated because he did not imply defendant was responsible.The prosecutor did not commit misconduct when arguing to the penalty phase jury that an inmate did not testify due to intimidation. The prosecutor never implied defendant intimidated the witness and the person may have been intimidated because any other inmate could consider him "a rat" if he testified against another inmate.id: 17705
Prosecutor did not commit misconduct during penalty phase argument by suggesting the tepid testimony of defendant's sisters showed their belief that death was appropriate.Defendant argued the prosecutor committed misconduct at the penalty phase by arguing the half-hearted testimony of defendant's sisters who asked the jury to spare defendant's life showed they believed defendant deserved the death penalty. However, the prosecutor did not misstate testimony, but rather, simply interpreted the witness's tepid testimony.id: 17704
Prosecutor did not argue inconsistent theories where he presented evidence at the penalty phase that defendant was the shooter in a prior crime and the defendant had pled guilty to being the shooter.Defendant argued the prosecutor erred by presenting evidence that defendant was the shooter in a previous case when a codefendant in that case had admitted that he was the shooter. However, there was no improper use of inconsistent theories in separate trials of coperpetrators since the codefendant never went to trial. He pled guilty to shooting the victim. Defendant's rights were not violated where the prosecution did not argue inconsistent theories.id: 17509
Prosescutor did not err at penalty phase by arguing the death penalty would be meaningless if not applied to defendant.The prosecutor did not commit misconduct during closing argument at the penalty phase by stating the death penalty would be meaningless if not applied to defendant or defendant was the victim's judge, jury and executioner. The comments suggested the penalty phase evidence supported death and did not invite the jury to take the sentencing decision lightly.id: 17477
Prosecutor did not err by telling penalty phase jurors the death penalty was intended "for people who are psychotic."The prosecutor's statement during penalty phase closing argument that the death penalty was intended "for people who are psychotic" did not amount to misconduct. The statement was immediately corrected to reflect the requirement that the emotional disturbance must be extreme. Moreover, the prosecutor did not intend to deceive the jurors, and it was not likely the jurors misconstrued the remarks.id: 17478
Prosecutor did not err at penalty phase by arguing evidence of defendant's childhood was a "ploy."The prosecutor did not commit misconduct by stating in penalty phase closing argument that evidence of defendant's childhood was a "ploy." The argument was not a challenge to the court's ruling to admit the evidence and was not an attack on defense counsel's integrity.id: 17479
Prosecutor did not err at penalty phase in arguing defendant's evidence that he would not be dangerous as a life prisoner was speculative.The prosecutor did not err in arguing at the penalty phase that evidence that defendant would not be dangerous as a life prisoner was purely speculative. Where, as here, a defendant presents evidence of his capacity to adjust to prison life, the prosecutor may argue the evidence is unpersuasive.id: 17480
Prosecutor did not err by asking witness about defendant's "numerous" homicides where the defense called the witness to show defendant's history of false confessions.To show defendant had a history of confessing to murders he did not commit, the defense called a deputy district attorney who prosecuted another murder case in which defendant falsely claimed responsibility. During cross-examination by the prosecutor the witness testified defendant said he had committed numerous homicides. On appeal, defendant argued the prosecutor committed misconduct in eliciting the testimony regarding defendant's admission to "numerous" homicides as such testimony went only to establish propensity. However, the prosecutor's questioning was consistent with the defense that defendant habitually confessed to crimes he did not commit. There was no misconduct.id: 17488
Prosecutor's statement in argument that this was the worst case the county has seen was not an improper expression of personal belief.During penalty phase closing argument, the prosecutor argued this was "the most egregious case that this county has ever seen." Defendant argued the comments improperly stated the prosecutor's personal beliefs. However, reasonable jurors would have understood the comment as an expression of the prosecutor's opinion that the crime called for the death penalty.id: 17494
Prosecutor did not err in penalty phase closing arguments by referring to the possibility that sex crimes were also committed against the murder victims.Defendant argued the prosecutor committed misconduct during penalty phase closing argument by arguing defendant committed sex crimes against the murder victims as shown by the nude body of one victim pressed against defendant as he stabbed her, and that he assaulted another victim. However, the prosecutor was entitled to discuss the circumstances of the crime. Where the circumstances showed the possibility of sexual conduct or motivation (particularly in light of defendant's criminal history) the prosecutor could highlight these facts despite the absence of specific sex crime charges.id: 17317
Evidence did not show the prosecution knowingly presented perjured testimony where it was not clear that the trial testimony rather than the recantation was false.Following an evidentiary hearing, the California Supreme Court denied the capital defendant's petition for writ of habeas corpus which alleged the prosecution knowingly presented perjured testimony at trial. The court rejected the referee's finding that three witnesses testified falsely. It was not clear that the trial testimony rather than the subsequent recantations were false. This is especially true where the witnesses later disavowed the recantations. Moreover, the inducements provided to the witnesses, and relied upon by the referee, were presented to the jury which convicted the defendant.id: 17140
In light of the cold blooded nature of the present killings the prosecutor did not err in arguing at the penalty phase that defendant posed a danger to others if his life was spared.Expert testimony that a capital defendant will pose a danger to others in prison if his life is spared is inadmissible. However, the prosecutor did not err by arguing that in light of the evidence defendant was a remorseless killer who would kill again if allowed to live. The prosecutor may have erred by cross-examining a defense psychiatrist on the topic of defendant's immaturity and dependant personality as a measure of his potential to commit additional crimes in prison. However, there was no prejudice as the witness rejected the premise of the question. id: 17084
Prosecutor did not urge jurors to excuse themselves if they could not vote for a death sentence.The prosecutor argued that if the weight of the penalty phase decision was too much for certain jurors, that alternates were available. The argument was not misconduct to the extent that it suggested the inability to perform one's function could be remedied by replacement. However, it was close to misconduct and statements regarding the discharge of jurors should be left to the courts. Further argument that jurors without "street smarts" should listen to fellow jurors may have incorrectly suggested other jurors were better able to evaluate the ultimate penalty. However, there was no misconduct where the jurors were also properly told to be patient and discuss the evidence with the other jurors. id: 17086
Prosecutor did not err at the penalty phase by referring to a book written by a psychiatrist suggesting criminals sometimes get undeserved sympathy at the expense of their victims.In penalty phase closing argument, the prosecutor referred to a book written by a psychiatrist which found that in murder cases people quickly forget the victim and focus their attention and sympathy on the accused. While the prosecutor may have given the argument additional scholarly weight by noting the author of the book was a psychiatrist, defendant never objected on this ground. Moreover, arguing the idea that criminals sometimes get undeserved sympathy at the expense of their victims was not improper.id: 16944
Prosecutor did not commit misconduct by referring to defendant as inhuman or comparing her to a Nazi crematorium worker who listened to Mozart at night.During penalty phase closing argument, the prosecutor said defendant lacked a heart and did not qualify as a human being. The comment referred to defendant's inhumane conduct and was permissible. Likewise, there was no misconduct where the prosecutor compared defendant to a Nazi who worked at a crematorium by day and listened to Mozart by night. The comment showed that people may lead double lives showing refined sensitivity in some activities and barbaric cruelty in others. id: 16967
It is proper at the penalty phase for a prosecutor to invite to jurors to put themselves in the place of the victims and imagine their suffering.The prosecutor did not commit misconduct in his penalty phase argument by inviting the jurors to consider what happened to the victims and to put themselves in the victims' shoes.id: 16814
Prosecutor did not commit misconduct during the guilt phase by asking the victim's doctor about a hypothetical rape victim's ability to perceive where the issue was initially raised by the defense.Defendant argued the prosecutor committed misconduct at the guilt phase of a capital case by asking the doctor of a living victim whether a traumatized rape victim might block out details of the incident. According to defendant, the question allowed the prosecutor to preview penalty phase evidence of a prior forcible rape. However, the question was asked on redirect exam after defense counsel cross-examined the doctor as to whether a traumatized person might suffer impairment of perceptive ability. Moreover, the prosecutor made no effort during the guilt phase to link the defendants to the hypothetical rape, and no evidence of any rape was admitted at the guilt phase.id: 16585
Prosecutor did not err by arguing alternative versions of the events in the penalty phase closing argument.The prosecutor did not commit misconduct in the closing argument at the penalty phase by arguing alternative versions of the events leading up to the murder, because the jury's guilt phase verdict did not indicate which version it believed, and the prosecutor maintained that death was appropriate under any of the possible scenarios.id: 16388
Failure to object to the prosecutor's introduction into evidence at the penalty phase of defendant's racial slur constituted a waiver of the issue.Defendant argued the prosecutor committed misconduct during the penalty phase by eliciting from a psychiatrist a racial slur defendant uttered in response to a standardized psychological examination question. However, because no objection was made at trial the issue was waived.id: 16303
Prosecutor did not err in telling penalty phase jury that she did not seek the death penalty "lightly".During closing argument at the penalty phase the prosecutor told the jurors she did not ask for the death penalty "lightly". This was not a personal endorsement or improper vouching. The prosecutor simply said this was the People's considered position, and not whimsical.id: 16305
The prosecutor did not argue that if God or another external force commanded defendant's actions he was not legally insane.Defendant argued the prosecutor erred by arguing at the sanity phase that the jury could not find him guilty by reason of insanity because his conception of God (who defendant claimed commanded his actions) was pantheistic rather than "Judeo-Christian." However, the argument was not an assertion that the law did not permit a finding of legal insanity on the theory that, because a universal force condoned his actions, defendant did not know his conduct was morally wrong.id: 16307
Prosecutor's comment on lack of mitigating evidence at penalty phase was not an impermissible comment on defendant's failure to testify.During penalty phase closing argument the prosecutor commented on the lack of any mitigating evidence presented by the defense. Contrary to the defendant's claim on appeal, the prosecutor's argument was not an impermissible comment on defendant's failure to testify.id: 15009
Prosecutor's asking penalty phase jury to consider defendant's potential for committing future violent acts was not prejudicial error.Prosecutor asked the jury to consider defendant's potential for committing future violent acts before determining his penalty. Such comments from a prosecutor, who claims neither to be neutral nor an expert in human behavior do not have a high potential for prejudice and are not improper.id: 14532
Prosecutor's characterization of the defense as lies and misrepresentations was a comment on the evidence and not the prosecutor's experience.Characterizing the defense as lies and deception the prosector said that's the best case I've ever seen in any case I've ever prosecuted of intentional misrepresentation and consciousness of guilt, and if you believe that's what you were subject to you may consider that in your decision. The comment was not improper. The prosecutor attacked defendant's alibi for two days meticulously bringing to light every inconsistency and falsehood. It was the evidence produced at trial and not the prosecutor's experience that demonstrated defendant's mendacity and consciousness of guilt.id: 14534
Prosecutor's comment on defendant's remorselessness was not a comment on a nonstatutory factor in aggravation.The prosecutor argued during penalty phase that there was no reason to extend mercy to the defendant due to his lack of remorse. However, such a comment on defendant's remorselessness during and after the commission of the crime would not be understood, contrary to defendant's argument as a comment on nonstatutory factor in aggravation. Moreover, the comment did not violate the Eighth Amendment by interjecting a subjective and speculative matter into a proceeding that must be reliably based on reason.id: 14535
Prosecutor's comment on the heinousness of the crimes was not an improper comparison to other crimes not introduced at trial.In closing argument at the penalty phase, the prosecutor argued that the crime was the most heinous ever committed in the area and he sought the death penalty because it is appropriate in this case. The comment on the brutality and heinousness of the crimes, although close to being improper as a comparison to crimes not introduced at trial was rather a comment on the nature of the offenses themselves. The prosecutor's comment regarding the death penalty was not an improper vouching for the appropriateness of the verdict he urged, but rather, a statement that it was the People's position that defendant's crimes called for the ultimate sanction.id: 14536
Prosecutor's comment regarding future dangerousness was permissibly aimed at persuading the jury not to attach great significance to the claim that defendant had been a model prisoner.In response to defense counsel's characterization of defendant as a model prisoner, the prosecutor suggested in closing argument that defendant presented a future danger. The prosecutor's argument did not invite the jury to speculate concerning defendant's future dangerousness as a factor in aggravation. Rather, the argument was permissibly aimed at persuading the jury not to accord significant weight to the defense evidence, proffered in mitigation, that defendant had been, and presumably would continue to be, a model prisoner. Moreover, there was no evidence suggesting defendant could be rehabilitated and that he posed a threat of violence was a fair comment based on his violent criminal past.id: 14537
Prosecutor's failure to disclose inducements to an informant did not require reversal of the death penalty as witnesses testified the informant received or expected consideration for his testimony.Defendant was sentenced to death and in his habeas petition claimed entitlement to relief both because an informant gave false testimony and because government inducements for that testimony were not revealed to the defense and were unavailable to impeach the informant at trial. The prosecution's failure to disclose its promises did not require reversal of the judgment since the jurors received information the witness was receiving or expecting consideration for his testimony and the possibility of a different verdict would not have been reasonably likely absent the prosecution's failure to make the required disclosures.id: 14540
Prosecutor's improper comment that LWOP meant three meals, television, a gym and conjugal visits did not require reversal where they were not told the sentencing responsibility should be treated lightly.During closing argument at the penalty phase the prosecutor told jurors to think of the horror the victims felt before they died. She then told jurors to consider that life without possibility of parole meant three meals a day, television, a library, a gymnasium and conjugal visits. The jury was admonished to disregard the improper statement but there was no prejudice where the prosecutor did not suggest the jurors should not take the sentencing obligation seriously.id: 14541
Prosecutor's improper comments regarding the impact of the crimes on friends and relatives was harmless given the number and callousness of the offenses.Defendant argued the court erred at the penalty phase in admitting the testimony of friends and relatives who discovered the victims' bodies. Because the penalty issue was tried before a new jury, it was necessary to present again at the penalty phase, much of the evidence originally introduced at the guilt phase. However, the prosecutor erred in arguing to the jury to put [themselves] behind the eyes and in the mind and in the memories of the relatives and friends. In view of the number and callousness of defendant's crimes, obvious comments to the effect that his crimes caused suffering could not have had an appreciable effect on the jury's deliberation.id: 14542
Prosecutor's penalty phase question about the victim's last chance for marriage and a family was not improper even though the victim was gay and was HIV positive.During cross-examination of the defendant's fiance at the penalty phase the prosecutor asked whether defendant ever mentioned it was unfair that the victim would never be able to marry and enjoy a family. Defendant argued the question was deliberately misleading because the prosecutor knew the victim was a homosexual who was HIV positive. However, the question sought only to learn whether defendant regretted depriving a young person of the opportunities of life in general.id: 14543
Prosecutor's reference to a newspaper cartoon urging the jurors not to hesitate to oppose the death penalty was not prejudicial.The prosecutor concluded his penalty phase argument with the description of a newspaper cartoon he had seen: there's a picture of hand and a gun, and smoke coming out of the barrel of the gun. And it simply says underneath it, `the murderer did not hesitate to give the death penalty to the victims. Why should you?'" Defendant argued this reference was improper because it eliminated any individualized consideration for the particular defendant on trial. However, urging the jurors not to hesitate to impose the death penalty is not the equivalent of urging them to ignore their responsibility to follow the court's instructions in making their decision. In any event, the isolated remark, even if it had been improper, was not prejudicial to the defense.id: 14544
Prosecutor's reference to the victims and his family were brief and harmless.Defendant argued prosecutional misconduct based on statements made during closing argument about what was going on in the victim's mind during the last moments of his life and what his wife and family must have been like. Any error was harmless where the prosecutor's references to the victim and his family were fleeting and restrained.id: 14545
Prosecutor's remark that he may not have sought the death penalty had defendant withdrawn from the conspiracy was not prejudicial.At penalty phase, the prosecutor argued that he personally would not have sought the death penalty if defendant would have withdrawn from the conspiracy after the aborted attempt to have someone kill the victims. While the comment was probably improper, it was brief and could not have prejudiced defendant.id: 14546
Prosecutor's remark that there had not been an execution in 22 years was in response to defense counsel's vivid description of an execution.Defendant argued the prosecutor erred during penalty phase closing argument by stating We haven't had an execution in California since 1966. That's 22 years ago. Defendant claimed the statement suggested the execution would not occur, thus minimizing the jury's sense of responsibility for imposing the death penalty. However, in his opening argument defense counsel had described to the jury in vivid terms the horrors of an execution. The prosecutor responded that counsel could not have been speaking from personal experience since there had not been an execution for so long.id: 14547
Prosecutor's subtle questions to capital defendant regarding sentencing credits did not require reversal.A prison teacher testified for the defense at the penalty phase that while on death row defendant volunteered for educational help and made progress in reading, writing and mathematics. On cross-examination the prosecutor asked whether inmates can sometimes get work time or good time credits relating to an early out by participating in vocational and educational programs. The questions (although asked without objection) were probably improper in that they invited the jury to speculate that a sentence of life without parole might someday be commuted, permitting defendant's release. However, the failure to object to such questioning did not undermine confidence in the judgment as the jury was expressly instructed that a death sentence would be carried out and that defendant would not be released from prison if given life without parole.id: 14548
References to victim's character traits during closing argument did not require reversal.In closing argument at the penalty phase the prosecutor asked how old was Danny when he got killed? and later talked about positive traits possessed by the murder victim. While arguably improper the comments had no appreciable affect on the penalty verdict.id: 14549
Rule requiring timely objections at trial to alleged acts of misconduct applies equally to the penalty phase.Defendant assigned as prejudicial misconduct various remarks made by the prosecutor during penalty phase arguments. He argued the rule requiring a defense objection to such improper remarks does not apply at the penalty phase. However, the rationale for requiring timely objections at trial to alleged acts of misconduct applies equally to the penalty phase.id: 14550
Where defendant places his character in issue at the penalty phase it is not error for the prosecutor to invite the jury to draw inferences from defendant's courtroom demeanor.The prosecutor invited the penalty phase jury to consider defendant's demeanor at trial as evidence of his mental condition. Defendant argued this was prosecutorial misconduct. However, when a defendant places his character in issue at the penalty phase, it is proper for the jury to draw inferences on that issue from their observations of defendant in the courtroom and therefore for the prosecutor to base a closing argument on such observations.id: 14551
While non-testifying experts should not have been mentioned by name, the prosecutor did not err in observing defendant failed to adduce psychiatric testimony to support his mental claim.Defendant argued the prosecutor in closing argument improperly referred to two psychologists who did not testify at trial. Inasmuch as neither expert testified at trial, their names should not have been mentioned. However, prosecutorial comment upon a defendant's failure to call logical witnesses is not improper. Therefore, the prosecutor did not err, on the whole, in observing that defendant had failed to adduce expert psychiatric testimony to support the claim that he was depressed and suicidal when he confessed to the crimes.id: 14552
Defendant's answer to prosecutor's question regarding choice of penalty was not improper following defendant's statements regarding his remorse and religious conversion.During penalty phase the defendant testified on his own behalf regarding his religious conversion and his remorse. The prosecutor asked on cross-examination what penalty he believed was appropriate and he answered the penalty of death. In the context of defendant's entire testimony the prosecutor's question was unobjectionable, for it bore on the extent of defendant's remorse for his crimes, his realization of the seriousness thereof, and his willingness to atone for them by paying society's highest price.id: 14496
Evidence that defendant suborned perjury at the guilt phase was admissible at the penalty phase to rebut defendant's statement regarding a religious conversion after the killings.Defendant argued that evidence that he asked a witness to lie under oath at the guilt phase of the trial would not have been admissible as evidence in aggravation under the California capital sentencing scheme and that such evidence had no bearing on his personal responsibility and moral guilt and was inadmissible at the penalty phase. However, defendant testified at the penalty phase that he became a born again Christian after the killings but before the arrest. The prosecutor's reference to defendant having suborned perjury was directly related to the character trait defendant had put in issue, and was proper rebuttal.id: 14497
Notwithstanding isolated improper comments by the prosecutor, penalty phase arguments as a whole did not mislead jurors to believe they did not bear the ultimate responsibility for sentencing.During penalty phase argument, the prosecutor stated: It will not be your responsibility, it will not be your fault. These and other statements may have improperly misled the jury to believe that they did not bear the ultimate responsibility for the sentencing. However, in light of the prosecutor's other comments and defense counsel's argument, the jurors could not have been misled to believe the responsibility for determining the appropriate penalty rested on someone or something besides themselves.id: 14498
Once defendant introduced mitigating evidence of his rehabilitative efforts in prison, the People were entitled to attack his sincerity by addressing the possibility of appellate reversal.On direct examination at the penalty phase defendant testified that he had attempted to rehabilitate himself on death row. On cross-examination defendant denied the prosecutor's suggestion that appellate reversals were one of the biggest topics of conversation on death row. Defendant argued on appeal that the question improperly diminished the jury's sentencing responsibility by calling attention to the fact that the penalty judgment was subject to reversal on appeal. However, once defendant introduced mitigating evidence of his rehabilitative efforts in prison, the People were entitled to attack his sincerity by exposing the obvious hope of gaining juror sympathy in a later sentencing trial.id: 14499
Penalty phase comment on defendant's lack of remorse was not improper.A defendant's remorse or lack thereof is a proper subject for the jury's consideration at the penalty phase, and the prosecutor's comment thereon, which lacked any suggestion that the absence of remorse should be deemed a factor in aggravation of the offense, was proper.id: 14500
Penalty phase comments on defendant's courtroom demeanor were not improper where defense witnesses spoke to defendant's good character.The prosecutor during penalty phase referred to defendant's courtroom demeanor, specifically some sort of smirk. However, defense witnesses spoke to defendant's good character and positive attributes when not under the influence of drugs and the jury could draw inferences in that regard from their observations of him in the courtroom.id: 14501
Prosecution may argue the absence of mitigating factors weighs against leniency.During the penalty phase the prosecutor argued defendant's background did not warrant leniency. The prosecutor may argue that the absence of mitigating factors weighs against leniency, so long as he refrains from suggesting that the mere absence of a mitigating factor weighs in favor of the death penalty.id: 14502
Prosecutor did not argue that defendant's lack of remorse was an aggravating factor.Defendant argued the prosecutor committed misconduct when, in closing argument at the penalty phase, he referred to defendant's lack of remorse for his crimes. However, the prosecutor merely noted the absence of remorse, and did not suggest such absence was an aggravating factor.id: 14504
Prosecutor did not err in arguing about the victims' terror.During closing argument the prosecutor asked the jurors to focus on and try and get a feel for the terror the victims felt. The information was relevant to life-or-death decision and did not create a constitutionally unacceptable risk of arbitrary or capricious sentencing.id: 14505
Prosecutor did not err in arguing to the penalty phase jury that defendant lacked remorse.Defendant claimed the prosecutor argued facts not in evidence when he told the penalty phase jury that defendant lacked remorse and showed no sympathy for the victim. However, lack of remorse was a permissible inference from the evidence. Moreover, the prosecutor's suggestion did not constitute an inappropriate suggestion that defendant's failure to confess was a factor in aggravation. Finally, lack of remorse is relevant and is not too speculative a factor to be included in death penalty considerations.id: 14506
Prosecutor did not err in arguing defendant lacked remorse to counter the agreement that the jury should spare his life out of pity.The prosecutor argued the jury should consider defendant's lack of remorse in considering the penalty. The comments were made to counter the argument that the jury should spare defendant's life out of pity for him. When comments on lack of remorse do no more than suggest the inapplicability of a potential mitigating factor, they are appropriate.id: 14507
Prosecutor did not err in arguing that remorse was lacking as a circumstance in mitigation.Defendant argued the prosecutor's penalty phase comments improperly invoked defendant's lack of remorse as an aggravating factor. However, the comments made clear the prosecutor was merely observing that a letter written by defendant to his sister while in prison provided no evidence in mitigation. It is proper to argue that remorse is lacking as a circumstance in mitigation.id: 14508
Prosecutor did not err in arguing the capital defendant did not warrant the jury's sympathy.Defendant argued the prosecutor improperly told the jury they should not have sympathy for defendant because he had shown no remorse, had not earned sympathy, and because of the nature of the crime. However, the prosecutor merely argued that in light of the evidence adduced at the penalty phase defendant did not warrant the jury's sympathy.id: 14509
Prosecutor did not err in arguing that jurors should not be overwhelmed with sympathy for the defendant.During penalty phase argument the prosecutor told the jurors if they allowed sympathy for the defendant to overwhelm them we might as well do away with the death penalty. A reasonable juror would not have understood this argument as an assertion, contrary to the court's instructions that sympathy for the defendant could not be considered.id: 14510
Prosecutor did not err in asking rhetorical question about defendant's future dangerousness.During penalty phase arguments the prosecutor rhetorically asked the jury, How many of you would like your son or husband being a guard wherever this man may be? How many of you would like your husband or son being a transportation officer handling him and you think you would feel safe? The brief statements fell within the range of permissible argument.id: 14511
Prosecutor did not err in penalty phase rebuttal in refuting the defense claim that if the jury voted for death it would be on the same moral level as the murderer.During closing argument at the penalty phase the prosecutor, in response to defense counsel's argument, told the jury they were not the killers and neither were the legislators, the prosecutors or the state appellate courts. The argument did not mislead the jury into believing the responsibility for defendant's sentence lay elsewhere. Rather, the remarks were designed to refute the defense's implication that if the jury voted for death, it would be on the same moral level as the murderer.id: 14512
Prosecutor did not err in telling the jury they could consider evidence bearing on defendant's background but not that of his family.Defendant argued the court erred in instructing the penalty phase jury that it could consider defendant's background but not that of his family. The argument was not improper as the prosecutor made clear that defendant's family background was relevant to the extent that background involved the defendant himself.id: 14513
Prosecutor did not err in telling penalty phase jury that defendant "by his own hand condemned himself to death."Defendant claimed the prosecutor erred in arguing: "December 13, 1994, ladies and gentlemen, something happened. Noel Jackson by his own hand condemned himself to death." However, the statement did not mislead the jury to believe the responsibility for determining the appropriateness of defendant's sentence lay elsewhere.id: 14514
Prosecutor did not err during the penalty phase in telling the jury that defendant had no opportunity to commit crimes for a certain period of time due to his incarceration.Defendant argued that his due process confrontation and reliable penalty rights were violated by improper evidence and argument about his history of incarceration. He claimed that without evidentiary support, the prosecutor improperly suggested he had not been violent between 1973 and 1979 because he was continuously incarcerated during that period. The argument was not improper. It merely placed the aggravating evidence in perspective by inviting the jurors to assume that for some period defendant had no opportunity to commit criminal acts on the street.id: 14515
Prosecutor did not improperly argue the law required the death penalty.During closing argument at the penalty phase the prosecutor stated sometimes the law requires a literal retribution for the taking of a life. This was not an improper argument that the law required application of the death penalty to the defendant. Read in context the statement simply informed the jury if it found the death penalty was the appropriate penalty, it had a responsibility to carry it out.id: 14516
Prosecutor did not prejudicially err in commenting that defendant's statement in allocution was not subject to cross-examination.The trial court permitted the defendant during penalty phase to make a statement in allocution. The prosecutor did not commit prejudicial error in calling attention to the fact that defendant's testimony was not subject to cross-examination.id: 14517
Prosecutor did not prejudicially err in failing to disclose the witness' unsuccessful attempt to extort a last minute advantage in return for his testimony.Defendant argued the People failed to disclose material exculpatory evidence that a witness-prisoner attempted to strike a last minute deal in exchange for his testimony. The People should have corrected the false impression created by the portion of the witness' testimony regarding indictments, by disclosing that the witness had unsuccessfully sought to extort a last minute advantage in return for his testimony. However, since the attempt failed and the witness testified without succeeding in securing a quid pro quo, the portion of his statement explaining his motivation for testifying was not demonstrably false or misleading.id: 14518
Prosecutor did not suggest to penalty phase jury they did not have the ultimate sentencing responsibility where he stated defendant killed himself when he killed the victims.During summation at the penalty phase the prosecutor argued a psychological ploy used by defense lawyers is to give jurors the impression they would be killing the defendant, when in truth, he killed himself the moment he killed the victims. Defendant claimed the argument minimized the jury's sense of personal responsibility in returning a death sentence. However, the prosecutor simply urged jurors not to be swayed by arguments for sympathy, because defendant had only himself to blame for committing crimes that merited a death sentence.id: 14519
Prosecutor did not suggest to prospective jurors at the penalty phase retrial that they could not consider lingering doubt.At the penalty phase retrial the prosecutor informed prospective jurors during general voir dire that defendant had been convicted of first degree murder with the special circumstance of torture, that they must accept this verdict and need not concern themselves with the concept of proof beyond a reasonable doubt. The statement was not improper since the prosecutor did not suggest in any way that lingering doubt or proof beyond a reasonable doubt as to the special circumstance could not be considered.id: 14520
Any error in prosecutor's references to Biblical passages as support for the death penalty was waived for lack of an objection.Defendant argued the prosecutor improperly relied on Biblical references in urging the jury to impose the death penalty. Not only did defense counsel fail to object but he relied at length on the Bible as support for not imposing the death penalty.id: 14486
Argument did not urge the jury to return a death verdict because defendant exercised his constitutional rights.Prosecutor argued defendant had a trial and was afforded certain rights unlike the dead officer and that a death verdict would show police officers their lives are worth at least as much as the criminals. The argument did not urge the jury to return a death verdict because defendant exercised his constitutional rights and did not suggest that defendant should be given a greater penalty because he had a trial.id: 14488
Comment on the absence of a nonstatutory factor in mitigation was not improper.The prosecutor stated that defendant showed no sympathy for the death of the officer or for the officer's family. However, a statement to the effect that remorse, a nonstatutory factor in mitigation, was absent is not improper.id: 14491
Comment that defendant was deceptive during the penalty phase was not an improper comment on his right not to testify where he in fact testified.Defendant testified at the penalty phase and then refused to be cross-examined and resumed his seat at the defense table. During closing argument, the prosecutor stated defendant was deceptive during the penalty phase. The comments did not draw attention to defendant's right not to testify because he did testify. Moreover, the comment was not without a factual basis.id: 14492
Defendant waived any error in the prosecutor's biblical references during penalty phase closing argument by failing to object and using similar references himself.The prosecutor began his penalty phase argument by stating: Thou shalt not kill. He then recounted the history of that command and included numerous biblical references. He also discussed the historical origin of the death penalty, again with biblical references. The courts have generally condemned invocations to a different or other law than that found in the California Penal Code. However, defendant waived any error by failing to object. In fact, trial counsel not only failed to object, but he relied at length on the Bible as support for not imposing the death penalty.id: 14495
Prosecutor's telling potential penalty phase witness who was an eyewitness to a prior uncharged crime of the status of the case did not taint the subsequent identification.During the penalty phase the district attorney's office sent a process server to subpoena a witness to a prior uncharged robbery who would identify defendant as the robber. The process server volunteered information that defendant had been convicted of murder and was now in the penalty phase of his trial. Defendant argued the comments of the prosecutor's representative amounted to an impermissibly suggestive pretrial identification procedure. However, her casual explanation of the reasons for the subpoena simply provided information of which the witness would become aware. The information did not taint the subsequent in-court identification.id: 11403
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245