CA1: AEDPA leads to another prosecutorial misconduct green light

Dagley v. Russo, No. 07-2059 is an affirmance of a habeas denial on the basis of prosecutorial misconduct in the form of prejudicial misstatements during closing arguments that didn’t get a curative instruction, thinking that a jury of non-lawyers would get confused.  The First has sent a clear message that prosecutors can do whatever they want, and this case is no exception.  (There seems to be one recent exception to this rule, which I reported on here.)

I guess I have to pretend that the First is taking this issue seriously.  The underlying issue is whether the prosecutor incorrectly stated state law regarding manslaughter in his closing argument.  Everyone seems to agree that he did. But the First says that the Mass. SJC Applied Donnelly v. Dechristoforo, 416 U. S. 637 (1974) well enough.