In Fortune v. State, the SC Supreme Court reversed a Chesterfield County murder conviction based on prosecutorial misconduct… (look! A unicorn!) Congratulations to Elizabeth Franklin-Best who represented Fortune and presented his case to the SC Supreme Court.

It’s a big deal because trial judges, appellate courts, and disciplinary counsel in SC routinely and regularly 1) look the other way and 2) make excuses for unethical prosecutors who bend the rules to convict defendants in SC.

In this case, the trial judge all but sanctioned the prosecutor’s comments during closing arguments – comments that should have resulted in a mistrial, but defense counsel didn’t ask, and it is clear from the record the trial judge would not have granted it.

The appellate courts did not reverse on direct appeal. When Fortune filed a PCR action, the PCR court agreed that the prosecutor’s actions were improper but denied PCR, finding that the prosecutor’s actions did not deny Fortune a fair trial.

If anyone bothered to file a grievance with the Office of Disciplinary Counsel, I would be shocked to find it went anywhere – prosecutors are held to a different standard than other attorneys in SC, and it is a rare unicorn indeed if they were disciplined for something they did during a trial.

But, earlier this month, the SC Supreme Court called the prosecutor’s actions what they are, made no excuses for them, and reversed a murder conviction based on the prosecutor’s misconduct.

It’s a big deal. It’s important. Why?

When there is no other mechanism in SC to hold prosecutors accountable – no possibility of civil liability for malpractice and little to no likelihood of professional discipline – the potential for reversal of a conviction may be the only check on prosecutorial misconduct in SC.

What did the prosecutor do and why was the conviction reversed?

Prosecutorial Misconduct: What is a Defense Lawyer’s Job?

In closing argument, the Chesterfield County prosecutor told jurors that a defense attorney’s job is to manipulate the truth, to shroud the truth, to confuse jurors and to “do whatever they have to – without regard for the truth.”

Is that a defense lawyer’s job? To manipulate the truth and confuse jurors?

First, what is a defense lawyer’s job? It is to win their client’s case, using every means legally and ethically available. Does that mean by confusing jurors without regard for the truth?

The key is ethically – a defense attorney wins their case by presenting the truth to jurors. If a defense lawyer, already under suspicion because of unethical and misleading statements like those made by the prosecutor in Fortune’s trial, lies to jurors or misleads them, jurors will know it and that defense lawyer will lose their case for their client.

It’s a defense lawyer’s job to investigate, to discover as much information as possible about the charges, their client, the witnesses, and any alleged victims, and to present that information in as persuasive a way as possible to jurors.

It is also often a defense lawyer’s job to fight unethical and underhanded conduct by prosecutors – including lying to jurors, manipulation of the truth, subornation of perjury, and hiding exculpatory evidence.

What will happen if a defense lawyer, in closing argument, tells the truth and explains to jurors that the prosecutor doesn’t always dismiss cases against innocent defendants, that all snitches get deals and the prosecutor hides that fact from the jurors, that there may be evidence the jurors won’t see because the prosecutor is keeping it from them, and that the prosecutor is going forward with the trial because his boss said he had to do it – not because he is convinced of the defendant’s guilt?

What will happen if the defense lawyer says to the jurors, “Just the other day, I heard this prosecutor say, ‘if he’s not guilty of this, he’s guilty of something?’”

Would the trial judge stop the trial? Or would the trial judge make excuses, gloss over the inappropriate statements, and move on? Would the defense lawyer get a letter from the Office of Disciplinary Counsel asking for an explanation?

What is a Prosecutor’s Job?

On the other hand, the prosecutor explained to the jurors, a prosecutor’s job is to present the truth and the Code of Laws requires the prosecutor to say what the truth is. The prosecutor must dismiss a case if the person is not guilty:

The prosecutor explained that if he—the prosecutor—believes “somebody else did the crime,” then he must “dismiss it.” “And [if] I know the person has done something that I think the facts show they’re guilty of, then I can’t [dismiss] it. I have to go forward with it.”

All of this is true. And, for many reasons, saying it to the jurors deprives a defendant of a fair trial.

More importantly, although this indeed is what the law requires of a prosecutor, it is not always what prosecutors do in the state of SC.

If a prosecutor gets to say these things to a jury – the law requires me to tell the truth, the law requires me to screen these cases before taking them to trial, and the law requires me to dismiss cases when there is not enough evidence – then the defense lawyer surely gets to tell the jurors about all the cases where jurors disagreed with the prosecutors assessment of guilt, where preliminary hearing courts dismissed cases for lack of evidence because the prosecutor would not do it, and where the prosecutor has lied to jurors to cover up police misconduct?

Should we just call the prosecutor and defense attorney as witnesses, to tell jurors how some defense attorneys are unethical and how some prosecutors lie?

Prosecutorial Misconduct: Why was Fortune’s Murder Conviction Reversed?

The SC Supreme Court, refreshingly, made no excuses for the prosecutor’s conduct in this case:

The PCR court found the remarks were “improper.” We find they were absolutely inexcusable.

The prosecutor does not get to tell jurors that they have already “screened the case” and decided the defendant is guilty. The prosecutor’s opinion or belief is irrelevant – their job in trial is to present the evidence, to make arguments based solely on the evidence presented, and to allow the jurors to decide guilt or innocence based on the evidence.

This is not some new rule – as the Court says:

Courts have universally condemned comments like this. Over eighty years ago, addressing prosecutorial misconduct not unlike the assistant solicitor’s closing argument in this case, the Supreme Court of the United States admonished prosecutors to uphold the integrity of the State in prosecuting crimes.

The Court reviews SC Supreme Court, US Supreme Court, and federal court of appeals decisions that universally condemn these types of comments by prosecutors – first, it lessens the jurors’ responsibility in a trial by suggesting the prosecutor has already reviewed the evidence and decided. Furthermore, the prosecutor’s opinions and beliefs are not evidence in any case.

Similarly, denigrating defense counsel and their role in a criminal trial is an underhanded tactic that has been condemned by state and federal appellate courts – either type of comment violates a defendant’s due process rights and denies them a fair trial.

Hopefully, SC’s appellate courts will continue to call out prosecutorial misconduct and there will be meaningful sanctions – whether it is a reversal or a disciplinary action – for willful misconduct by SC’s prosecutors.

Give us a level playing field.

Criminal Defense Lawyer in Charleston, SC

If you are charged with a crime in the Charleston, Myrtle Beach, or Georgetown areas, or if you believe you are under investigation, call Charleston, SC criminal defense attorney Grant B. Smaldone now at (843) 808-2100 or send us a message to speak with a SC criminal defense lawyer today.