I Agree With Obama

Who out there watches TV these days? It’s not very chic to admit to watching much TV, as such activities would take away from more “important” activities. I have friends that check their phone non-stop, take it everywhere–yet boldly proclaim (in their best holier than thou voice) “I don’t watch much TV”. What do you call that 4.7″ screen you carry around 24/7? Hate to burst bubbles here, but smartphone addicts are just trading TV one screen for another.

Nobody ever admits to watching much TV, but one thing I like about Obama is the fact that he owns up to watching his fair share of television. And, he has good taste (because, ..he likes the shows I like). So, let me go on the record here to say that I agree with Obama–the Showtime series “Homeland” is one of the best shows on television. For those of you who don’t know, Homeland is a CIA drama that tracks terrorists. The funny thing is, most of the CIA operatives on the show are not entitled to know what the other characters know. Everyone is on a need to know basis. (Wait for the segue, wait, here it comes…) The criminal justice system treats the jury in much the same way, the facts shared with the jury are on a need to know basis.

The case of Young v. State lays out for us what happens when the jury is told something they’re not supposed to know. 137 So. 3d 532 (Fla. 4th DCA 2014). Young was convicted of burglary of a dwelling and grand theft (yes, it’s possible under some circumstances, but we’re not going there today). The error in this case came down to a prosecutor’s misstatements to the jury during closing. To understand the err, let’s review what led up to it.

On the day of the burglary, the victim was invited to the police station to check out a photo lineup. Young was picked out of the photo lineup. Young’s defense attorney filed a Motion to Suppress the photo lineup because it was “inherently suggestive”. For those of you who don’t know how this works, let me explain how a bad lineup is created: (1) victim tells officer what the suspect looked like (2) officer goes into database and finds five people that look vaguely similar to the victim’s description, and (3) the sixth photo will be the person the officer believes to be guilty. For example, if the victim claims the suspect was an albino white male, a la Jim Gaffigan, the line up will include three dark skin Italians, two guys from India, and one super white dude who they suspect committed the crime. All six of the folks are technically white males, but small detail regarding the shade of skin complexion will be left out of all police reports–thereby making the photo lineup seem more legit.

Anyway, back to Young. Young’s Motion to Suppress the photo lineup was denied by the judge. Now, this doesn’t mean that Young’s defense attorney cannot argue that the lineup convicting his client sucked. He can even use the unprofessional, non-legal term suck, sucks, or sucked. Keep in mind, the jury doesn’t know that the defense attorney filed a motion claiming that the lineup was so bad as to render it illegal and inadmissible. That motion was denied, unbeknownst to the jury. So, to understand how this case was overturned, we’ll focus on the relevant parts of the closing arguments:

DEFENSE ATTORNEY: “the lineup was inherently suggestive, which means it is not competent, credible, reasonable evidence.”

PROSECUTOR: “The officer didn’t – he didn’t suggest anything, nothing was unduly suggestive. Uh, if – if it was unduly suggestive, you wouldn’t have heard that because that would have been a matter of law for the Judge to decide. And remember we talked about that in jury selection, everyone has a role? Judge’s role is a matter of law. So if there were anything to suppress because it was unduly suggestive, it would have been suppressed, but it wasn’t”

DEFENSE ATTORNEY: [probably said something like this] Objection! I’m moving for a mistrial. I never said the lineup was illegal.

JUDGE: I’m denying your request for a mistrial, but I’ll give a curative instruction to the jury: “ladies and gentlemen, you’ve heard it several times even from the attorneys and you’ll hear it from me again at this moment, decisions of law, rulings on the law are the province of the Court. I will instruct you on the law. Nothing you hear from either one of these attorneys, even if it happens to be correct, is – is your instruction on the law in this case and I will instruct you in the law momentarily.”

QUESTIONS: (1) was this curative instruction enough to overcome the prosecutor’s comments? No way. (2) did the defense attorney invite the prosecutors comments? No. Therefore, Young’s convictions were overturned and he was granted a new trial. Here’s why.

First, the state’s claim that the comments were “invited”. We’ve seen this argument before, and it hasn’t gone well for the prosecution. The Young court cited Stephenson v. State, a case in which “defense counsel argued during closing that the jury should disregard the defendant’s confession because he was tricked.” 645 So. 2d 161, 163 (Fla. 4th DCA 1994). On rebuttal, the state countered that the police did not do anything wrong because ‘it’s not illegal and if it was, you wouldn’t even be hearing this tape.’ . . . we held that ‘the prosecutor’s remark created the erroneous impression that the voluntariness of the confession had been resolved.” Id. The Young court went on to reason that “by arguing to the jury that if the lineup was inherently suggestive it would have been suppressed, the prosecutor suggested that the reliability of the lineup had already been decided by the trial court . . . [the trial court’s curative] instruction did nothing to correct the impression left on the jury by the prosecutor.” Id.

And there you have it. Another case overturned because the prosecution misled the jury. A jury cannot be told by the prosecution that evidence is “reliable” just because the judge found it to be “legal”. That evidence may be a confession (Stephenson), or it may be a photo lineup (Young), but the result is the same–defense attorneys are permitted to argue the reliability of the evidence, even if the judge found the evidence to be legally admissible.