Every lawyer who is worthy of appearing in a courtroom knows it is improper to make a “golden rule” argument. But some do it anyway, because they think they can get away with it.
And sometimes they do.
The prosecutor in State of Tennessee v. Russell, No. E2022-01428-CCA-R3-CD (Tenn. Crim. App. Aug. 28, 2023) did. He said this to a jury in a DUI case:
[PROSECUTOR]: . . . Frankly, honestly, I see people do a whole lot worse on those tests. A whole lot worse than what [the Defendant] did. But where do you draw that line? Where do you draw the line? Where are you going to draw the line? That line’s got to be drawn close. You – – okay, why?
Well, it’s – – how close – – it’s simple. How close are the lines on the highway? Nothing separating those lanes but that little strip of yellow or white. That’s how much space there is between somebody driving down the road smoking dope and someone who’s not. Someone maybe like you, maybe like your child or your grandchild.
[DEFENSE COUNSEL]: Objection, Your Honor. I have to say that’s an improper argument for the State.
THE COURT: Okay. I’ll overrule the objection. Continue on.
[PROSECUTOR]: So, these tests, these determinations of these tests, these judgment calls that that man has to make, sometimes people take issue with how closely we judge them. But we, we have no other choice. He has no other choice. He had no other choice. Those mistakes on the field sobriety test, they’re magnified behind the wheel of a speeding automobile. Maybe the guy that forgets what Trooper Shelton told him, the guy that
forgets how Trooper Shelton told him to do something, maybe that’s the guy that forgets you’re in the other lane. The guy that didn’t notice Trooper Shelton’s instruction, maybe that’s the guy that don’t notice the red light. And why doesn’t he notice? Why does he forget? You think that rolling that blunt, smoking that blunt had anything to do with it? It had everything to do with it. That’s why we’ve got to draw the line close. We do that so that five
miles down the road that line in the middle of the road is not the only thing between you and someone driving high. What we cannot do, we cannot wait until it’s obvious beyond all doubt. We do that we’re here on a different trial. You can’t wait ‘til he hurts himself or hurts somebody else.DEFENSE COUNSEL: Your Honor, may we approach?
THE COURT: You may.
([PROSECUTOR], INAUDIBLE)
[DEFENSE COUNSEL]: I didn’t want it in front of the jury, and also I take no pleasure in interrupting. I don’t want to.
[THE COURT]: Huh?
[DEFENSE COUNSEL]: All this parenthetical what’s going to happen, if you don’t find him guilty, will it be your family the next one is absolutely out of line in terms of my objection. I’m trying to be respectful about it and not talk about it in front of the jury, and I hate to interrupt him but I’ve got to get on the record objecting to it.
THE COURT: Yeah, I understand. Let’s, let’s – – let’s take just a brief – – we’re going to take just a brief recess. I want to see the lawyers in chambers just a second.
After an off-the-record conference and after the prosecutor completed his argument, the judge instructed the jury as follows:
THE COURT: All right. In just a moment [defense counsel’s] going to present his argument. The jury heard [defense counsel] make an objection and all the Court’s going to do at this time is instruct you that you will decide solely based on the evidence that was presented from the jury [sic] box and the law as I give it to [you]. The arguments of the, the arguments of both attorneys are merely to assist you in understanding the evidence, but you’re to decide it on the evidence that came from the witness stand, as well as the law as I instruct.
The Court summarized the law on closing argument:
Improper closing argument occurs when the prosecutor intentionally misstates the
evidence or misleads the jury on the inferences it may draw from the evidence; expresses
his or her personal opinion on the evidence or the defendant’s guilt; uses arguments
calculated to inflame the passions or prejudices of the jury; diverts the jury from its duty
to decide the case on the evidence by injecting issues broader than the guilt or innocence
of the accused under the controlling law or by making predictions on the consequences of
the jury’s verdict; and intentionally refers to or argues facts outside the record, other than
those which are matters of common public knowledge. State v. Goltz, 111 S.W.3d 1, 6
(Tenn. Crim. App. 2003).
But the majority of the Court of Appeals let the prosecutor off-the-hook, saying the improper outcome did not affect the outcome:
We agree with the Defendant that the prosecutor should not have appealed to the
emotions of the jurors by arguing that they or their loved ones might become victims of the
Defendant’s impaired driving. Our supreme court “has cautioned that the State may risk
reversal by engaging in argument which appeals to the emotions and sympathies of the
jury.” State v. Cribbs, 967 S.W.2d 773, 786 (Tenn. 1998). However, “[a] criminal conviction should not be lightly overturned solely on the basis of the prosecutor’s closing argument.” State v. Banks, 271 S.W.3d 90, 131 (Tenn. 2008) (citation omitted). “An improper closing argument will not constitute reversible error unless it is so inflammatory or improper that [it] affected the outcome of the trial to the defendant’s prejudice.” Id. (citations omitted).
(To be fair, the Court was hampered by an incomplete record – defense counsel did not put the discussion that took place in chambers on the record, including the discussion of the “curative” instruction the trial judge used.)
Judge Greenholtz dissented in part, agreeing that the prosecutor’s closing argument was improper, but went further and found that the improper argument impacted the verdict. He noted that the prosecutor came back to the improper argument on rebuttal. He analyzed the factors used to determine whether the wrongful conduct impacted the jury’s verdict and reached a different conclusion that his colleagues.
The problem with the result reached by the majority is that the prosecutor may now feel he or she has a license to do this again. We see this in civil cases, where once a lawyer thinks he or she can violate the rules of evidence or argument it become another arrow in the trial quiver. Any lawyer can, in the heat of the moment, make an innocent mistake at trial. But there are some lawyers who know better and deliberately do whatever they can get away with.
I don’t know whether this prosecutor simply didn’t know the law, let his/her emotions get in the way of proper advocacy, or knowingly violated the law of argument. Regardless of what happened and why in the Russell case, I hope the prosecutor has enough sense – and enough professionalism – not to let it happen again. And I hope that if it happens again the defense lawyer trying the case (and the trial judge) uses this opinion to have a mistrial declared.