In Commonwealth v. Fahey (Massachusetts Appeals Court No. 19-P-1487, March 15, 2021), the facts were not so innocuous but the prosecutor’s behavior was similar.
Mr. Fahey was convicted of murder in the second degree and he appealed, contending that the prosecutor’s conduct was outrageous.
The Fahey court began: “[W]e agree with the defendant that a new trial is warranted based on the cumulative effect of the prosecutor's improper cross-examination and inflammatory closing argument. We therefore vacate the conviction."
The court described the standard applicable to prosecutors as follows:
[I]t ordinarily is improper for a prosecutor to suggest that a defendant "tailored" his testimony to conform with the evidence he heard at trial. [I]t is a fundamental principle that a witness cannot be asked to assess the credibility of his testimony or that of other witnesses. [A] prosecutor may not ask a defendant a question for which the prosecutor cannot reasonably expect the defendant to provide an affirmative answer in order to communicate an impression by innuendo. [I]t is generally error for the prosecutor to cross-examine the defendant about his failure to contact police and tell them about his alleged self-defense before his arrest. Finally, a prosecutor may not subject a defendant to questions that serve merely to harass, annoy or humiliate. A prosecutor's staying within such boundaries helps to ensure that a defendant receives a fair trial in which the jury dispassionately determine his or her guilt or innocence based on the objective facts.
Describing this prosecutor’s cross-examination of the defendant, the court observed:
Here, the prosecutor’s questions went beyond proper cross-examination in all of the ways described above. For example, the prosecutor asked the defendant to comment on the veracity of other witnesses and suggested that the defendant was tailoring his testimony to that of the other witnesses . . . [T]he prosecutor asked, "So, you’re telling the truth and no one else is?" After the defendant answered, “Absolutely,” the prosecutor then asked, “[Isn’t it] convenient that [your story is similar to what] two other witnesses described last week?" [¶] [T]he prosecutor improperly posed numerous rhetorical questions that assumed a factual premise that the prosecutor knew the defendant denied . . . [¶]The prosecutor asked additional rhetorical questions to badger the defendant . . . The prosecutor also asked the defendant if he "underst[oo]d how unbelievable [his testimony] sounds." . . . [¶] . . . The prosecutor [also] asked, "How often did you rehearse that line, Mr. Fahey?"
As to closing arguments in general, the court noted: “It is improper for a prosecutor to use insulting names designed to evoke an emotional, rather than a rational, response from jurors . . . The problem with such name-calling is not whether the labels are accurate, but instead is whether it amounts to an improper appeal for sympathy that risks obscuring the clarity with which the jury would look at the evidence and encourage the jury to find guilt even if the evidence does not reach the level of proof beyond a reasonable doubt.”
The court described the closing argument: "[In addition to calling the defendant a 'bully' 13 times], the prosecutor excessively mocked the defendant's defense . . . us[ing] excessive rhetoric.”
The moral of the very recent cases of Commonwealth v. Diagle and Commonwealth v. Fahey is that the government will not play fair.
You need a competent and diligent attorney to look out for your interests.
