Prosecutorial Misconduct in the Florida Criminal Justice System
When will the Florida courts sanction Assistant State Attorneys, as oppose to writing opinions that allow them to scorm out of making improper arguments, during their prosecutions of criminal trials? The prosecutor’s role in Florida is to fairly administer justice. Their role is not to act improperly to sustain convictions! This role has become blurred and the appellate courts have allowed prosecutors who make improper arguments to juries, during criminal trials, to weasel their way out of sanctions at the detriment of the entire criminal justice system.
Take for instance the case of Wimberly v. State. Wimberly was convicted of attempted second degree murder with a firearm in Broward County, FL. During Wimberly’s trial the prosecutor made an improper appeal to racial prejudice. The Assistant State Attorney elicited testimony that Wimberly was also known as “Dread.”
Further, the prosecutor had a witness testify that she heard the shooter say, “yeah that’s the nigger.” The Assistant State Attorney had the witness testify twice to the elicited testimony regarding “yeah that’s the nigger,” because the prosecutor claimed that she did not hear the witness’s testimony the first time.
In this case, the victim of the shooting was a convicted felon and during the trial was actually sitting in jail on his own criminal matters. Additionally, the victim is the only person who identifies the defendant as the shooter. Other witnesses either recanted their testimony or could not remember events about the shooting at the time of the trial. This lack of credible testimony as to the identity of the shooter, also brought up another area of concern for the Assistant State Attorney.
Because the Assistant State Attorney’s case in chief was weak, with only the identity of the shooter coming from a less than credible witness, that being the felonious victim. The prosecutor had to again resort to improper tactics to sway the jury about this defendant, when no one in the community would testify as to what they may or may not have seen or heard regarding this shooting. The Assistant State Attorney in her closing arguments resorted to placing inflammatory facts into argument that were never elicited at trial. As a matter of fact, the Broward County Prosecutor remarked during closing argument, that the neighborhood where the shooting took place, was the type of neighborhood, where people attacked each other on a regular basis. This neighborhood is where people do not want to talk to police or to prosecutors, she insisted. The Assistant State Attorney made those improper argument without facts in evidence to do so, in her attempt to inject racial, economical and animalistic characteristics of the neighbor, where the defendant lived. This type of argument was to assure the jury it was doing the right thing in cleaning up the area with sending Wimberly to prison because he, like his area, is a full of crime. Another words, the area of the shooting was a high crime place and only criminals of course would live in such a place.
The 4th District Court of Appeals even stated in their written opinion that the remarks made by the prosecutor were in fact improper. But of course, as is always the case with many appellate rulings, they save the prosecutor and upheld the conviction on the grounds that even though the assistant state attorney made improper comments, the prosecutor’s remarks were not fundamental error reaching down to the validity of the verdict itself. This reasoning of course is wrong.
If the 4th DCA followed the holding in Gore v. State, a Florida Supreme Court case, which holds that while wide latitude is permitted in closing argument, but such latitude, does not extend to improper argument. Maybe not only would the results of the Wimberly case be different, but it may also change the tone and civility of wayward prosecutors like the above facts demonstrate.
The 4th DCA went on to affirm Wimberly’s conviction on direct appeal. The 4th DCA reasoned that the improper comments by the prosecutor did not rise to the level of fundamental error. Fundamental error occurs only when it reaches down into the validity of the trial itself and to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.
But remember the facts here; the only eye witness was a felon. The only witness was locked up on criminal charges during the trial. No witnesses would come forward to identify the shooter as Wimberly. The identity of the shooter was highly contested by the defendant at trial. To conclude that the errors by the prosecutor were harmless is ridiculous under the totality of the circumstances.
So here, the 4th DCA concedes that the prosecutor elicited improper testimony and made improper arguments. When you look at the totality of the circumstances, the prosecutor’s errors were intentional, methodical and planned. The errors were intentional because the prosecutor elicited the testimony “yeah that’s the nigger” not once, but twice. The prosecutor was methodical because she tied up the testimony “yeah that’s the nigger” with her closing argument regarding the neighborhood of where the defendant lived is where people do not want to talk to police or to prosecutors. Showing a lawless neighborhood, a high crime area, that needs to be cleaned up through convictions and sending people to prison. The prosecutor planned this improper behavior because she knew going into the trial, she had no witnesses to provide testimony as to who was the shooter other than a convicted felon who was currently sitting in jail at the time of his testimony.
Because of the above reasons in the totality of the circumstances, the errors committed by the prosecutor were in fact harmful. For the 4th DCA to hold that a prosecutor who goes to this level of intentionally and methodically planning, to usurp the providence of the jury with emotional cries for justice, is in fact harmful. This case does not even pass the laugh test. But with the current climate of protecting prosecutors and judges, even when those improper acts are committed in the well and sanctity of the courtroom, decisions like Wimberly will continue to erode our criminal justice system and harm our way of life.
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