finding that defendant was not denied a fair trial based upon improperly admitted hearsay testimony where the jury had already heard the substance of that testimony through another witness and therefore the improper testimony was cumulative
How later courts described this case
- finding that defendant was not denied a fair trial based upon improperly admitted hearsay testimony where the jury had already heard the substance of that testimony through another witness and therefore the improper testimony was cumulative
- holding that the trial court did not err in failing to appoint new counsel to represent the defendant on his pro se post-trial motion, which alleged that trial counsel was ineffective for failing to call certain alibi witnesses
- finding no error where the prosecutor argued that proof beyond a reasonable doubt “ ‘is a burden of proof that is met in courtrooms across this county and in this building each and every day’ ”
- observing that this court has repeatedly rejected attempts by defendants to specify nonstatutory mitigating factors at the aggravation-mitigation stage
Written by the judges who cited it.
The opinion
JUSTICE McMORROW, specially concurring:
Although I join in the majority’s decision to affirm defendant’s conviction and sentence, I write separately because I believe that the prosecutorial misconduct in the case at bar should be strongly condemned by this court. There is no justification for prosecutors, who are officers of the court, to conduct a campaign of invective against a defendant, defense counsel, and witnesses who testify on behalf of the defendant.
Most of the conduct and remarks challenged by defendant occurred either during the closing argument at the guilt/innocence phase of trial or during the capital sentencing proceedings. The record indicates that during the guilt/innocence phase of trial, one of the prosecutors made repeated suggestions in his closing argument that defendant and his counsel were lying or not to be believed. The prosecutor informed the jury that one of the imperfections of the criminal justice system was that defense "attorneys can stand up here and argue to you that those lies stand as proof of [defendant’s] innocence.” The prosecutor’s personal opinion regarding the veracity of defense counsel and flaws in the adversarial system of justice was unjustifiable, and had the potential to improperly influence the decision of the jury.
The most egregious conduct and remarks occurred during the capital sentencing proceedings, where one of the prosecutors at times argued with defense witnesses, using sarcasm and name calling. The record indicates that the prosecutor, during his cross-examination of Dr. Savarese, screamed questions at the witness and referred to defendant as "a jerk” and "Mr. Mentally Retarded.” The prosecutor’s denigration of the defense continued throughout his summation to the jury, during which he called Dr. Wetzel "Miss One Hundred and Fifty Dollars an Opinion.”
Capital sentencing proceedings impose upon the jury the serious duty of determining whether or not a defendant is eligible for and deserving of the death penalty, the most severe and irreversible state-sanctioned punishment available. The risk that a prosecutor’s improper remarks may inflame the jury is an important concern for reviewing courts as well as trial courts.
In the case at bar, the trial court sustained defense objections to some of the objectionable remarks, which the majority concludes cured any prejudice that might otherwise have occurred. Although a new trial is not always a necessary sanction for improper remarks of the prosecutor, prosecutorial behavior which repeatedly exceeds the bounds of zealous advocacy debases the proceedings and creates an unnecessary diversion from the evidence and the law.
It is significant that in addition to the degrading name calling and screaming that the prosecutors in the instant case engaged in, they also implied that the jurors would be violating their oaths if they returned a verdict other than death. This misstatement of the law cannot be lightly glossed over as inadvertent or insignificant. In my opinion, merely holding that any error was cured by the trial court’s sustaining the defense objection to the remark does not adequately dispose of the issue. Unless the trial and reviewing courts rebuke such egregious misconduct, there is little incentive in future cases for others to refrain from improper jibes, sarcasm, and outright distortions of the law. No matter how deplorable the crime in issue or how inadequate the defense theories may be perceived by the prosecution, the larger policies of fair trial and proper courtroom decorum inveigh against the type of prosecutorial remarks and conduct that occurred here. Such behavior benefits no one, not the people of Illinois who are represented by the prosecutor, not the victim’s families, and certainly not the individuals whose sole transgression was to give testimony on behalf of the defense.
In my opinion, the conduct described herein borders on constituting reversible error. For these reasons, I write separately to emphasize my strong disapproval of the prosecutorial remarks in the instant case and to caution lawyers and judges to vigorously guard against such unprofessional conduct.
JUSTICE FREEMAN joins in this special concurrence.