explaining that in reviewing remarks made by a prosecutor during summation, the closing argument must be reviewed in its entirety
How later courts described this case
- explaining that in reviewing remarks made by a prosecutor during summation, the closing argument must be reviewed in its entirety
- court of appeals is to "presume that a broad range of choices, perhaps even disastrous ones, are made on the basis of tactical decisions and do not constitute ineffective assistance"
- criticizing prosecutorial remarks as "sophistry and pejorative ranting"
Written by the judges who cited it.
The opinion
Grady, Judge,
concurring.
I am in complete agreement with Judge Young’s resolution of the issues presented by the fourth and fifth assignments of error. A practice seems to have
*629
grown among some prosecutors, who believe that they have nothing to lose, of compelling a conviction by so vilifying an accused that a jury would not dare to acquit. Prosecutors should strictly avoid the practice, and defense counsel should be vigilant in discharging their duty to protect their clients from its effects. Both should be mindful of the admonition delivered to federal prosecutors by the United States Supreme Court in
Berger v. United States
(1935), 295 U.S. 78, 88 , 55 S.Ct. 629, 633 , 79 L.Ed. 1314 , 1321:
“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”