Prosecutorial Misconduct Invalidates Death Sentence

A politically diverse Sixth Circuit panel vacated a death sentence today on the basis of prosecutorial misconduct at the penalty phase.  See Bates v. Bell, No. 02-6436.  What kind of language does it take to bridge the ideological divide? 

In closing argument at the sentencing phase of the trial, the state prosecutors repeatedly told the jury that by "permitting" Bates to live they would "become an accomplice" to the murder and an accomplice to future crimes, because Bates is a "rabid dog" to whom they will be issuing a "warrant of execution for someone else." Suggesting that a vote for a life sentence for Bates was a vote for a death sentence for others was a continuing refrain throughout the final argument. The prosecutors frequently followed these expressions with their negative personal opinions about Bates’s expert witness and with personal attacks against Bates’s lawyers.

The opinion does not provide guidance, however, on a question of particualr interest to some readers, how to show the that jury was affected:

Overwhelming evidence of guilt can oftentimes be sufficient to sustain a conviction despite some prosecutorial misconduct, but overwhelming evidence of guilt does not immunize the sentencing phase evaluation of aggravating and mitigating factors.  "[T]he Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604 (1978). Prosecutorial misconduct in the sentencing hearing can operate to preclude the jury’s proper consideration of mitigation. "When a prosecutor’s actions are so egregious that they effectively ‘foreclose the jury’s consideration of . . . mitigating evidence,’ the jury is unable to make a fair, individualized determination as required by the Eighth Amendment.

I don't see how this kind of reasoning gets one to the result (desirable though it may be).  The prosecution did not physically prevent the jurors from hearing the mitigating evidence.  The problem is the egregiousness of the misconduct, but we are not able to articulate a bright line for when such misconduct requires vacating the sentence, so we pretend that the jurors are so controlled by the prosecutor that the prosecutor foreclosed their consideration of mitigating evidence. 

Comments

[TomFreeland]

I'm having trouble making the 6th circuit links work; I've tried on two different machines with 2 different browsers. With Firefox, I get a "stopped" message on the status bar and a blank screen. With Explorer, it's just a blank screen. I wonder if it is some sort of oddity involving Pacer, which is apparently serving up the opinions on the 6th circuit page.

[Unidentified Reader]

In the future if you have this problem, just replace the IP address portion of the link (the 4 numbers at the start) with pacer.ca6.uscourts.gov and it should work fine.

[TomFreeland]

I tried the advice from U.R., no avail, then went straight at Pacer (logged in & etc) and suddenly, now, the 6th Cir. opinions are available to me. I have no idea why.

[Scotus]

Might have something to do with cookies.

[Unidentified Reader]

I didn't know comments could be edited by the editors... :)

[S.cotus]

We can do all sorts of things. I was even thinking of uploading a file or two.