# People v. Moss > Illinois Supreme Court · October 18, 2001 · 205 Ill. 2d 139 URL: https://www.frixlaw.com/law-library/cases/9744523 ## Case - **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. SANANTONE MOSS, Appellant - **Court:** Illinois Supreme Court - **Decided:** October 18, 2001 - **Citations:** 205 Ill. 2d 139; 275 Ill. Dec. 444; 792 N.E.2d 1217; 2001 Ill. LEXIS 1427 - **Precedential status:** Published - **Opinion:** Concurring in part by Freeman - **Judges:** Garman, McMorrow, Freeman, Kilbride, Harrison - **Cited by:** 106 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9744523 ## How later opinions describe it (automated extraction) - explaining that calling the defendant’s experts “ ‘cash for trash doctors’ ” was “completely unacceptable” - finding defendant’s poor adjustment to incarceration “as evidenced by his possession of weapons and his receipt of 44 disciplinary tickets while in prison” relevant to the comparison of criminal records of the codefendants ## Opinion text JUSTICE FREEMAN, concurring in part and dissenting in part: I respectfully concur in part and dissent in part from today’s decision. With respect to the issues raised by defendant concerning the guilt phase of his trial, I agree with my colleagues in the majority that the convictions must be affirmed. I do take issue, however, with the analysis used to resolve defendant’s argument concerning the propriety of the prosecution’s closing argument at this phase of the trial. Defendant maintains that the prosecutors engaged in improper argument during the closing of the guilt phase of the trial. The court holds, correctly, that the issue was waived because it was not properly preserved. The court then states that defendant “urges this court to review the statements under the plain error rule.” 205 Ill. 2d at 168. After noting the plain error exception to the waiver rule, the court observes: “Defendant makes no effort to argue that the evidence at his trial was closely balanced nor does he maintain the alleged errors were so fundamental that they denied him a fair and impartial trial.” 205 Ill. 2d at 168. The court concludes that defendant’s failure to so argue results in waiver. 205 Ill. 2d at 168. Our plain error doctrine is based upon Supreme Court Rule 615(a), which provides the following: “Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” 134 Ill. 2d R. 615(a). We have consistently interpreted Rule 615(a) to allow a court of review to consider those errors that have not been properly preserved when (i) the evidence is closely balanced or (ii) the purported error is of such magnitude so as to deny the defendant a fair and impartial trial. People v. Vargas, 174 Ill. 2d 355, 363 (1996) (and cases cited therein.). If one of these prongs is met, the procedural default is excused. The court’s determination that defendant “makes no effort” to argue plain error results from the narrow and restrictive reading the court accords to defendant’s briefs. On page 47 of his opening brief, defendant invokes this court’s Rule 615(a), which, as noted above, is the plain error rule. Defendant then goes on to cite cases that he believes support his view that the argument deprived him a fair and impartial trial. Defendant further contends that the State’s closing argument was designed to “divert the jury’s attention from the weakness of the State’s murder case.” Defendant also maintains on page 50 of his brief that another comment also served “to muddy the waters because the evidence against [defendant] was so weak and their key witness was so completely lacking in credibility.” Defendant reasserts these same arguments in his reply brief. In light of these contentions, I cannot join the court in its summary conclusion that defendant has made “no effort” to demonstrate plain error. Defendant is clearly arguing that (i) the evidence of his guilt was weak, and (ii) the errors were of such a nature so as to deprive him of a fair and impartial trial. For these reasons, I do not believe that defendant has, in any way, “twice waived this argument.” Our precedent dictates that, unless plain error exists by which to excuse a procedural default, the bar must be honored. People v. Keene, 169 Ill. 2d 1, 17 (1995). I have reviewed the remarks defendant claims were improper and find no reason to excuse the procedural default. The evidence adduced at the guilt phase of the trial was not closely balanced, as the court correctly notes. Moreover, none of the complained of remarks were of the nature to undermine the fairness of the guilt phase of the trial. In all other respects, I join in the court’s opinion as to the guilt phase of defendant’s trial. Notwithstanding my agreement that defendant’s convictions must be affirmed, I am unable to join in the court’s disposition of defendant’s argument concerning remarks made by the prosecution during closing argument at the death sentence hearing. I, therefore, respectfully dissent from that portion of today’s opinion. Defendant maintains that certain comments made by the prosecutors during the aggravation/mitigation stage of his death sentencing hearing were improper and inflammatory and denied him a fair sentencing hearing. In resolving the issue, the court notes that defendant failed to object to most of the comments and did not include the issue in his post-trial motion. As a result, the court holds that the issue is precluded from review on appeal. 205 Ill. 2d at 170. The court states that defendant failed to acknowledge his procedural default and failed to request that the court address the issue under the plain error rule. 205 Ill. 2d at 170. Accordingly, the court concludes: “[d]efendant has waived any challenge to these remarks. This conclusion should not be interpreted in any way as condoning improper prosecutorial remarks that have become all too frequent in criminal trials. The prosecutor’s use of sarcasm to describe Dr. Hardy’s diagnosis as a ‘booboo to the head’ and reference to both expert witnesses as ‘cash for trash doctors’ is completely unacceptable. Although a new trial is not always a necessary sanction for improper remarks of a prosecutor, comments denigrating defendant’s witnesses must be strongly condemned.” 205 Ill. 2d at 170-71. Thus, the court holds that defendant’s failure to argue plain error in his brief precludes review. Although purporting not to address the issue, the court takes the position that, while the prosecutor’s use of sarcasm was “completely unacceptable,” a new trial is not a proper sanction in this case. I strongly disagree with the court’s approach to this issue for several reasons. As an initial matter, the court again, as it did in addressing the guilt phase improper argument issue, takes defendant to task for failing to define just how the defaulted error constitutes “plain” error. This happens because, once again, the court reads the briefs much too narrowly and much too restrictively. In his opening brief, defendant argues that several remarks made in closing arguments by the prosecutors during the aggravation-mitigation phase of the sentencing hearing were improper and necessitated reversal. I note that, in so doing, defendant cites to at least one case in which this court held that comments similar to those at issue in this case constituted plain error. People v. Holman, 103 Ill. 2d 133 (1984). Therefore, it appears to me that defendant has, in fact, couched his presentation in terms of plain error. I believe that the better approach to this issue is for the court to address the argument under the traditional plain error analysis that I noted in the foregoing section of this separate opinion. Additionally, I do not understand why, after having concluded that defendant’s failure to invoke the plain error doctrine results in a waiver of the issue, the court feels compelled to assert that its “conclusion [that the issue is waived] should not be interpreted in any way as condoning improper prosecutorial remarks that have become all too frequent in criminal trials” (205 Ill. 2d at 170) or that comments denigrating a defendant’s witnesses “must be strongly condemned” (205 Ill. 2d at 171) . If the issue has been waived due to deficiencies in briefing (see 155 Ill. 2d R. 341(e)(7)), then I do not see the point in making these statements. The reason for this seemingly contradictory treatment is that the court wants to have it both ways. The court takes this approach in order to “send the message” that the type of conduct that occurred in this trial should not really be tolerated. This approach, however, will not serve as a substitute for addressing the argument in depth because this court has sent these types of “messages” before. See People v. Kidd, 175 Ill. 2d 1 (1996). Our past “messages” appear to go unheeded as this case more than amply demonstrates. I am further troubled by the fact that the court’s handling of this issue does nothing that would serve to diminish the likelihood of such conduct from recurring in our courtrooms. In fact, I see quite the contrary: Today’s opinion reveals that this court (i) will not concern itself with improper argument in the courtroom if a defendant’s brief does not conform with the court’s own notions of an articulate argument and (ii) will not, even in the face of conduct that is, by the court’s own admission, both “condemnable” and “all too frequent in criminal trials” attempt to discipline or even name those who engage in conduct that this court has prohibited. Why-then should any prosecutor readjust his or her argument to conform to our holdings when nothing happens to those who do not? In light of these facts, I am more than confident that such conduct will be repeated in the future because there are simply no adverse consequences for those prosecutors whose behavior crosses the line, which is what happened in this case. As I explain more fully below, the plain error rule is satisfied here because the complained-of conduct served to deny defendant a fair and impartial sentencing hearing. At the second stage of the sentence hearing, the State presented evidence in aggravation which consisted of, inter alia, defendant’s (i) lengthy and violent criminal history, (ii) extensive disciplinary record while incarcerated in the Department of Corrections, and (iii) abusive behavior towards friends and family members. The State did not present any medical or psychiatric experts. The defense case in mitigation consisted of an attempt to establish, as the sole mitigating factor, that defendant suffered from an extreme mental or emotional disturbance when he committed the crimes in the fall of 1991. To that end, the defense presented the testimony of Dr. Daniel Hardy and Dr. Jonathan Pinkus. Dr. Hardy, a forensic psychiatrist, evaluated defendant and found that he suffered from a schizo-affective disorder that was either aggravated or caused by a history of brain injury documented by previous physicians. Dr. Hardy was aware that other doctors had examined defendant closer in time to the events in question and had diagnosed defendant as a “malingerer.” However, Dr. Hardy disagreed with these diagnoses. Dr. Hardy acknowledged that the other doctors had examined defendant closer in time to the events in question and had concluded that defendant did not have a mental illness. These facts did not cause Dr. Hardy to change his opinion because a significant personality disorder and mental disturbances had been documented in defendant’s medical records, which predated the murders in question. Dr. Pinkus, a professor of neurology, also evaluated defendant. Based upon his own observations and the reports of other professionals, Dr. Pinkus stated that defendant suffered from a brain dysfunction. Dr. Pinkus testified that his diagnosis was confirmed by Dr. Hier, the chairman of the department of neurology at the University of Illinois, who concluded that “cerebral organicity could be a contributing factor in either excessively aggressive behavior or failure to inhibit anti-social or aggressive behavior.” The cross-examination of Dr. Hardy, by Assistant State’s Attorney Laura Morask, was vigorous and oftentimes intense. At one point, the following exchange occurred. “Q. Doctor let me ask it a different way. Did he ever tejl you in the 2 hours and 10 minutes that you spent with him that he suffered any childhood abuse? A. That’s the reference that I’m trying to locate, please. Q. So again you have to search through your records, you don’t know this, do you, off the top of your head? Mr. Mullane [defense counsel]: Objection, Judge. THE COURT: Overruled. MS. MORASK: Q. Would it be correct, Doctor, the longer it takes you to look through the records the more money you’re going to make here today? A. The longer I’m on the witness stand, yes. Q. Okay. So the answer to that question would be yes? THE COURT: He answered it. MS. MORASK: Thank you Judge. THE COURT: Move on.” The cross-examination continued until the following colloquy: “Q. [by Ms. Morask] Are you actually saying the defendant’s criminal conduct is the result of a physical abnormality, is that what you’re saying? A. Well that he has an abnormal brain that has contributed to it, absolutely. MR. McKAY [prosecutor]: Objection, Judge, not responsive again. MR. LEVITT [defense attorney]: You already admonished counsel once about that. THE COURT: Mr. McKay, Mrs. Morask is the attorney questioning. MR. McKAY: Can you instruct the witness to answer the question Judge, for once. THE COURT: Mr. McKay, the attorney questioning him has not required it or asked for it. MS. MORASK: Judge, I’m asking for this particular question once again. THE COURT: Ask the question again. MS. MORASK: Q. Are you actually telling us that Sanantone Moss’ criminality is caused by some boo-boo to the head? THE COURT: All right, Miss Morask, stop that.” The cross-examination concluded shortly thereafter. Notwithstanding the circuit court’s admonitions during cross-examination, Morask returned to these very themes during closing argument. The record reveals that Morask began her summation by pointing out the suffering defendant had caused, not only to the victims in this case, but to his past victims. She then argued: “And your job is to weigh that and balance that against what? A boo-boo to the brain. That’s what they want you to find precludes imposition of the death penalty. Ladies and gentlemen, do not forget over the last 2 days we’ve heard about his life, we heard about his problems, we’ve heard about his jail cell, we’ve heard about his medication, we’ve heard about his brain ad nauseum from psycho-babble that went on and on and on. Do not forget the face of 10 year-old Diandra Jones. Do not forget the face of her mother, Emma Renee Jones and her baby brother, Troy Jones. And her other brother, Matthew Warner. Do not forget what this case was all about in the beginning. You may and you must and you shall consider all of the evidence that you have already heard. All of the evidence at the trial, all of the evidence at the eligibility phase. When you consider all of this evidence and you weigh it against those 2 cash for trash doctors *** you’ll see that there are no mitigating factors sufficient to preclude imposition of the death penalty.” At this point, the argument turned toward detailing the evidence that had been adduced regarding defendant’s past crimes. Morask then addressed defendant’s case in mitigation: “Then we come to the good doctors. They told you in opening statement that these doctors, that the mitigation, would not be presented as excuses for his behavior. But that’s exactly what it is. It’s excusing, they’re trying to excuse his responsibility for his own criminal conduct. That is what those doctors were trying to do. Doctor Hardy. Doctor, T can’t answer a question straight if my life depends on it,’ Hardy. Doctor T can’t give a one word answer when 50 words will make me more money.’ *** He’s a bought and paid for witness. If you do the math, his 2 hours and 10 minutes with the defendant was charged at four dollars a minute. What he made here in the time he was on the witness stand was far more than you folks make in a day of jury service. This is outrageous. * * * Psycho-babble folks, it was all psycho-babble. He discounts, throws away and disregards what was the real evidence, the real findings, from doctors who examined the defendant closest to the time of the crime. And who were they? Doctor Kaplan, Doctor Reifman, Doctor Messina. No evidence of mental illness, no psychosis. What did they find? They found he [defendant] was a malingerer, he’s a liar. Doctor Pinkus prefers to call that delusions and Doctor Hardy prefers to call them schizo-affective disorder. If it walks like a duck, it’s a duck. They are lies. They aren’t even consistent with their own findings, with each other. Doctor Hardy says there is no childhood abuse, Doctor Pinkus says, oh, well there is overwhelming childhood abuse but he didn’t tell me about it and the fact that he didn’t tell me about it is a delusion, not a lie. It’s all psycho-babble. And what do they both rely on? This boo-boo to his brain. This is what they want you folks to rely on to excuse, to justify his criminal conduct, to explain as they say, to take away his responsibility for his criminal conduct.” Morask concluded her argument by pointing out that defendant had preyed upon children and had chosen a life of violent crime. She asked the jury to sentence defendant to death for all the evil he had done and to protect future children as well as society. Defendant argues that Morask’s comments on the testimony of the two defense experts were improper. According to defendant, the comments did not explain, modify or discredit the substance of their testimony. Rather, their only purpose was to denigrate the witnesses in the eyes of the jury. Under our plain error analysis, in order to determine whether an alleged error amounts to “plain error,” we must first determine whether error even occurred. See People v. Keene, 169 Ill. 2d 1, 17 (1995); People v. Sims, 192 Ill. 2d 592, 621 (2000). Generally, courts allow prosecutors great latitude in making closing arguments. People v. Cisewski, 118 Ill. 2d 163, 175 (1987). The State may, during closing, comment on the evidence presented and draw reasonable inferences from that evidence. People v. Pasch, 152 Ill. 2d 133, 184 (1992). Nevertheless, argument that serves no purpose other than to inflame the jury constitutes error. People v. Tiller, 94 Ill. 2d 303, 321 (1982). Closing arguments must be viewed in their entirety and the purported improper argument must be taken in context. Cisewski, 118 Ill. 2d at 176 . After reviewing the proceedings as a whole, it becomes clear to me, at least, that a good portion of Morask’s cross-examination and the argument that followed it was intended to degrade and insult the defense witnesses in an attempt to weaken the impact their testimony might have had on the jury and to inflame the passions of the jury against defendant’s case in mitigation. This court has held that “cross-examination which is designed to harass, annoy or humiliate a witness should not be tolerated.” People v. Lyles, 106 Ill. 2d 373, 402 (1985), citing Smith v. Illinois, 390 U.S. 129, 133 , 19 L. Ed. 2d 956, 959-60 , 88 S. Ct. 748, 750-51 (1968). Although the trial judge, during the actual cross-examination, admonished Morask to move on, which should have been enough to cure the problem, Morask proceeded to disregard the trial judge’s admonition and to inject the term “boo-boo” not once, but twice, into her closing remarks. These comments were exacerbated by Morask’s (i) continued references to the doctors’ testimony and opinions as “cash for trash,” “bought and paid for,” and “psycho-babble” and (ii) use of derisive, sarcastic names to refer to the doctors. This type of rhetoric serves no purpose other than to inflame the passions of the jury and denigrate and belittle the defense witnesses in its eyes. Prosecutorial remarks which serve no purpose but to inflame the emotions of the jury are highly improper and have no place in the sentencing phase of a capital trial. People v. Albanese, 102 Ill. 2d 54, 81 (1984). This court has repeatedly warned that prosecutors “must exercise the utmost caution in capital cases to avoid the use of such comments.” Lyles, 106 Ill. 2d at 406 . The complained-of remarks take on added significance when viewed against the fact that the defense called both Dr. Pinkus and Dr. Hardy to testify as expert witnesses regarding their opinion of defendant’s mental condition, and the State did not call any such expert witnesses to testify to a contrary opinion. Instead, the State relied solely — during cross-examination — on the reports of others in order to contradict and discredit the defense experts’ opinions. I note that in this respect, Morask argued to the jury that Dr. Hardy “discounted,” “threw away,” and disregarded the “real evidence” and “the real findings, from doctors who examined the defendant closest to the time of the crime. And who were they? Doctor Kaplan, Doctor Reifman, Doctor Messina.” I must point out that Doctors Kaplan, Reifman, and Messina did not testify in this case so the reference to their opinions as the “real evidence” is misleading. 1 Morask’s vouching for the credibility of these doctors was also an improper expression of personal opinion: “It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony, or evidence ***.” 1 ABA Standards for Criminal Justice 3 — 5.8(b) (2d ed. 1980). In the commentary to this rule, the ABA notes that prosecutorial conduct in argument “is a matter of special concern because of the possibility that the jury will give special weight to the prosecutor’s arguments, not only because of the prestige associated with the prosecutor’s office, but also because of the fact-finding facilities presumably available to the office.” 1 ABA Standards for Criminal Justice 3 — 5.8(b), Commentary, at 3.88 (2d ed. 1980). See also ABA Model Rules of Professional Conduct R. 3.4(e) (2001) (prohibiting a lawyer in a trial from “assert[ing] personal knowledge of facts in issue except when testifying as a witness, or stat[ing] a personal opinion as to *** the credibility of a witness”). The United States Supreme Court has acknowledged similar concerns: “[T]he prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.” United States v. Young, 470 U.S. 1, 18-19 , 84 L. Ed. 2d 1, 14 , 105 S. Ct. 1038, 1048 (1985). Put another way, the prosecutor “ostensibly speaks with the authority of his office. The prosecutor’s ‘personal status and his role as a spokesman for the government tend to give what he [says] *** the ring of authenticity *** tending] to impart an implicit stamp of believeability.’ ” Commonwealth v. De Christoforo, 360 Mass. 531, 550 , 277 N.E.2d 100, 112 (1971) (Tauro, C.J., dissenting), quoting Hall v. United States, 419 F.2d 582, 583-84 (5th Cir. 1969). For these reasons, I believe Morask’s remarks were improper. Having determined that the challenged remarks constituted error, the question turns to whether defendant’s procedural default can be excused. See Keene, 169 Ill. 2d at 17 (noting that if the error is found not to rise to the level of plain error, the procedural default must be honored). As I noted previously, this court has interpreted Rule 615(a) so as to excuse a procedural default if either the evidence was closely balanced or the error affected substantial rights. We have explained the latter prong of the analysis to mean that “what must be affected by the asserted error must be something ‘fundamental to the integrity of the judicial process.’ ” Keene, 169 Ill. 2d at 17 , quoting People v. Green, 74 Ill. 2d 444, 456 (1979) (Ryan, J., specially concurring). In essence, the fairness of the proceeding must be undermined. Keene, 169 Ill. 2d at 17 . In a similar vein, I note that the United States Supreme Court has recognized that plain error occurs when the error is said either (i) to have created an “unacceptable danger of prejudicial influence on the jury’s verdict,” or (ii) to have “seriously affect[ed] the *** integrity or public reputation of [the] judicial proceedings.” United States v. Atkinson, 297 U.S. 157, 160 , 80 L. Ed. 555, 557 , 56 S. Ct. 391, 392 (1936). I believe that the argument conducted by Morask in this case created an “unacceptable danger of prejudicial influence on the jury’s verdict” such as to excuse defendant’s procedural default. This court has recognized: “It is axiomatic that parties in closing argument may not go beyond the scope of the evidence presented and facts fairly inferable therefrom [citation], misstate the law [citation], or express their personal opinions on the evidence [citation] or on defendant’s guilt [citation]. Further, arguments which are calculated to play upon the jurors’ emotions are clearly improper. A penalty of death that may have been imposed under the influence of passion or prejudice cannot stand.” (Emphasis added.) People v. Williams, 161 Ill. 2d 1, 78 (1994). In my view, it is impossible in this case to say what impact Morask’s continued sarcastic characterizations of the defense witnesses and their testimony — as well as her vouching for the credibility of experts who did not testify — may have had on the jury as it deliberated on the question of whether the mitigation precluded the imposition of the death penalty. The record in this case demonstrates that the prosecution chose to respond to the defense’s case in mitigation with derision, sarcasm, and rudeness. At times, McKay would “object” that the witness’ responses were “nonresponsive” even though his partner, Morask, was conducting the cross-examination. This was done despite repeated admonishments from the trial judge to refrain from the behavior and, unfortunately, added to what was a generally caustic and inflamed atmosphere during cross-examination. Compounding this problem of juvenile behavior on the part of the prosecution team was Morask’s tendency to bolster her case by vouching for the credibility of witnesses that she did not call to the stand. This leads me to conclude that the prosecutors’ conduct in this matter consisted of “a calculated course of action to play upon and incite the emotions *** of the jury.” Williams, 161 Ill. 2d at 81 . Thus, I cannot say that Morask’s argument did not divert the jurors’ attention from considering, dispassionately, the mitigation offered by the defendant in this case, and I am unable to conclude that the misconduct did not serve to increase the likelihood that the jury’s decision at the aggravation-mitigation portion of the hearing was based on emotion rather than reason. In addition, the prosecutorial improprieties of the sort present here appear to indicate a recurring problem in capital proceedings. I must point out that a pattern and practice of intentional prosecutorial misconduct that has not been deterred through other remedies, such as admonishment and condemnation, “may well so seriously undermine the integrity of judicial proceedings as to support reversal under the plain-error doctrine.” Young, 470 U.S. at 33 n.16, 84 L. Ed. 2d at 24 n.16, 105 S. Ct. at 1055 n.16 (Brennan, J., concurring in part and dissenting in part, joined by Marshall and Blackmun, JJ.). This court has repeatedly held that the conduct at issue here is improper and is to be avoided. Lyles, 106 Ill. 2d at 402-03 (denigration of defense witnesses); Williams, 161 Ill. 2d at 80 (expressions of personal opinion); Holman, 103 Ill. 2d at 172-73 (same). These cases are the established precedent of this court. It must be remembered that this court, by virtue of constitutional mandate, reviews every capital sentence imposed in this state. As such, when we issue an opinion that holds that certain types of arguments are to be avoided and that certain types of arguments are improper, we expect those who practice in our courtrooms to heed our rulings and conform their behavior to our mandates. When members of the bar, who are officers of the court, fail to follow our holdings — designed to ensure the fairness of capital proceedings — the result serves to compromise the very integrity and public reputation of this court’s administration of justice. As I alluded to earlier, this court has attempted to police this type of argument before by admonishing against its future commission. In People v. Kidd, 175 Ill. 2d 1 (1996), the court was confronted with very similar conduct occurring, as in this case, in a capital trial in Cook County. The prosecutor in Kidd engaged in the same type of juvenile name-calling and sarcasm that is present in the case at bar. We upheld the sentence, noting that the trial judge had taken steps to lessen the prejudicial effect of the improper remarks and conduct, a fact that is absent in this case. Nevertheless, we specifically warned that prosecutors “violate the trust reposed in them by the public when they risk reversal of an otherwise proper conviction or death sentence for unprofessional conduct of this nature.” (Emphasis added.) Kidd, 175 Ill. 2d at 54 . More pointedly, two justices specially concurred in order to strongly condemn the conduct and to advise against its future occurrence: “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.” (Emphasis added.) Kidd, 175 Ill. 2d at 58-59 (McMorrow, J., specially concurring, joined by Freeman, J.). Kidd was issued on December 19, 1996. The oral argument conducted in the present case was held on October 30, 1998, nearly two years later. Nevertheless, the juvenile name-calling here is very similar to that condemned in Kidd as improper and unprofessional. It is obvious to me that our admonishments — that such behavior risks reversal — have not been heeded. Indeed, the sarcasm in this case was worsened by the fact that the prosecutor improperly bolstered her case by vouching for the credibility of witnesses who did not testify. Thus, the conduct that we urged prosecutors to refrain from in Kidd was not only repeated here, but was compounded by even more improper conduct. For this reason, the result that obtained in Kidd, an affirmance, cannot be obtained in this case. Unfortunately, the kind of courtroom tactic which occurred in this case does not appear to be an isolated occurrence. This court recently cited the conduct of two assistant State’s Attorneys as lacking in maturity and professionalism, once again in a Cook County courtroom during a capital trial. See People v. Blue, 189 Ill. 2d 99, 142 (2000). The frequency with which this court is seeing such behavior is not only alarming, but causes legitimate public concerns regarding the fairness and integrity of these proceedings. At a capital sentencing hearing, the trier of fact is given the duty of determining whether the ultimate punishment is to be inflicted upon the defendant. As such, the proceeding is a solemn one. Courtroom decorum and dignity must be vigorously guarded. In this regard, I believe that the United States Supreme Court’s observation in Young is particularly relevant in this case. “The kind of advocacy shown by this record has no place in the administration of justice and should neither be permitted nor rewarded; a trial judge should deal promptly with any breach by either counsel. *** * * * We emphasize that the trial judge has the responsibility to maintain decorum in keeping with the nature of the proceeding; ‘the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct.’ [Citation.]” Young, 470 U.S. at 9-10 , 84 L. Ed. 2d at 8-9 , 105 S. Ct. at 1043-44 . I agree with this sentiment and urge our trial judges to deal promptly with actions that serve to debase our criminal proceedings and jeopardize their fairness. Although I find the remarks of Morask to constitute reversible error, in and of themselves, I also wish to address the other comments that defendant identifies on appeal as being plain error. In this regard, I note that the court states that Morask’s use of sarcasm was “completely unacceptable” but does not speak to the comments made during rebuttal by Assistant State’s Attorney James McKay. I believe the court errs greatly by not mentioning these other remarks because they are equally as egregious and improper as those made by Morask. In rebuttal closing argument, McKay told the jury, among other things, that “[gjiving [defendant] natural life is an American Express Gold Card for this defendant to assault correctional officers, prison staff, cafeteria workers, possessing shanks, sharpened to a point to stab anybody who makes him angry.” McKay further argued that “[t]he bed on death row was reserved for him. Natural life is the minimum. Natural life is the minimum sentence. You know, just killing Diandra, just killing a girl under the age of 12, just killing one witness to prevent her from testifying gets the minimum. Are we suggesting that Emma’s murder was a freebie? He’s asking you for the minimum. What in the world has he done in his life to deserve the minimum.” This court has, in the past, allowed arguments regarding a defendant’s future dangerousness when those arguments are based on the evidence. See People v. Kidd, 175 Ill. 2d 1, 51 (1996); People v. Bounds, 171 Ill. 2d 1, 66 (1995), People v. Johnson, 146 Ill. 2d 109, 148-49 (1991). Indeed, the United States Supreme Court has held that a jury may determine a defendant’s future dangerousness in weighing whether to impose a sentence of death. See Jurek v. Texas, 428 U.S. 262 , 49 L. Ed. 2d 929 , 96 S. Ct. 2950 (1976). McKay’s argument, however, did more than ask the jury to consider the defendant’s potential, as shown by the evidence, for future violence. McKay told the jury that it would be providing the means for defendant to commit such acts if it chose to impose a sentence of natural life. In today’s culture, an American Express Gold card has certain connotations that are unmistakable, among which are the freedom and the privileges bestowed upon the holders of a such a card. In this case, McKay subtly told the jurors that they would be giving defendant the freedom to commit future violent acts and that, as a result, they would bear the responsibility for those acts if the jury were to choose to impose a sentence of natural life. Rather than emphasize the jury’s responsibility in deciding whether defendant should live or die, McKay emphasized the jury’s responsibility for future criminal acts that might be committed at defendant’s hands if he were not sentenced to death. This type of argument serves no function other than to increase the likelihood of a verdict reached by emotion rather than reason, which is unacceptable. Moreover, I note that McKay’s use of the term “freebie” to characterize the murder of Emma Jones was also improper. See People v. Kuntu, 196 Ill. 2d 105, 144-47 (2001). McKay’s argument was not an accurate statement of the law as we explained in Kuntu. The use of the term “freebie,” in this context, improperly conveys to the jury the notion that, if it did not return a sentence of death, defendant would be “getting away” with something. See Kuntu, 196 Ill. 2d at 145-46 (holding that such an argument is an improper statement of law which warrants reversal of death sentence). Although I acknowledge that defendant did not identify this remark as error, the precedent of this court nevertheless dictates that we reverse on this basis. The court today does not honor this precedent and, in so doing, calls into question whether Kuntu, an opinion decided just four months ago, is still good law. My concern in this area is more than just rhetorical — we have taken under advisement People v. Morris, No. 87645, which raises questions concerning yet another closing argument in which a prosecutor speaks in terms of “freebies.” The law of this court, particularly in capital cases, cannot be seen by the bar and the public to be one that is constantly “in flux,” changing from opinion to opinion with respect to the same issue. In voicing my dissent, I am mindful that closing arguments “are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear” and that a court “should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” Donnelly v. DeChristoforo, 416 U.S. 637, 646-47 , 40 L. Ed. 2d 431, 439 , 94 S. Ct. 1868, 1873 (1974). This cannot be said of the complained-of comments in the present case. The United States Supreme Court has noted the importance of a prosecuting attorney as “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 peculiar and very definite sense the servant of the law, the two-fold 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 *** as it is to use every legitimate means ***.” Berger v. United States, 295 U.S. 78, 88 , 79 L. Ed. 1314, 1321 , 55 S. Ct. 629, 633 (1935). This court has echoed the same concerns by reminding that an assistant State’s Attorney “is the representative of all the people, including the defendant, and it is as much his duty to safeguard the constitutional rights of the defendant as those of any other citizen.” People v. Oden, 20 Ill. 2d 470, 483 (1960). Moreover, we have stated that a prosecutor “has an obligation to comport himself in a manner which not only ensures that the defendant receives a fair sentencing hearing but which inspires respect for the administration of justice.” Lyles, 106 Ill. 2d at 412 . It is very difficult to see how either of these objectives were achieved in this case. Notwithstanding the court’s words of condemnation (205 Ill. 2d at 171) nor the concurring justice’s reiteration of her strong disapproval of this type of courtroom behavior (see 205 Ill. 2d at 174 (McMorrow, J., specially concurring), my colleagues’ disposition of this issue will serve only to embolden those who would engage in such highly charged rhetoric and confuse the trial judges who have to deal with it. This court cannot expect the trial judges to vigorously guard against improper conduct if we ourselves fail to address the problem with any consistency. I note that this court, in 1999, established a Special Supreme Court Committee on Capital Cases in order “to study the trial and sentencing processes in capital cases in Illinois.” M.R. 15833 (April 6, 1999). Both the executive and legislative branches of our state government likewise established similar committees designed to review the state’s administration of capital punishment. Each of these committees focused on, inter alia, the role of improper prosecutorial conduct in death penalty cases and ways to improve upon the trial processes which lead to capital convictions and sentences. In some cases, recommendations were made from these committees. The committees serve noble goals; however, they do not and cannot replace the responsibility of this court to take action against improper conduct when confronted with such conduct on appeal. The notions of reform ring hollow when this court, faced with conduct which requires reversal, fails to acknowledge it. In light of the above, I would vacate defendant’s death sentence and remand the matter for a new second phase of the death sentencing hearing. See People v. Thompkins, 191 Ill. 2d 438, 477 (2000). JUSTICE KILBRIDE joins in this partial concurrence and partial dissent. I note that several of these doctors did, in fact, testify at a pretrial hearing on the issue of defendant’s fitness for trial. However, none of these doctors testified during the trial proceedings conducted in front of the jury. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9744523. Public record. Not legal advice.