People v. Vance, a new California decision, reverses the conviction because of the prosecutor's improper arguments. I would have thought that every prosecutor -- and every newbie trial ad student -- would know that you can't make a "walk in the shoes" argument. I guess that's why the court referred the prosecutor to the state bar. Key passages:
The prosecutor opened her remarks by summarizing for the jury why the evidence showed that defendant was guilty of "a killing" that "was intentional" and "done with malice aforethought." She then examined the concepts of murder and manslaughter on which the jury would be instructed. The prosecutor then commenced a lengthy examination of the trial evidence to persuade the jury that defendant was guilty of first degree murder and, failing that, he was "at least guilty of second degree murder." The following then occurred:
"In order for you as jurors to do your job, you have to walk in Dipak Prasad's shoes. You have to literally relive in your mind's eye and in your feelings what Dipak experienced the night he was murdered. You have to do that. You have to do that in order to get a sense of what he went through. Can you imagine thinking about just hanging out with your friends, people who you think are your friends, driving them around in your car from place to place. Being told to drive to Palomares, thinking you're going for one reason, being completely unaware that there's another plan. Being told to turn into a dark driveway, no cars in sight. Being told to turn off your car engine, the lights, the music. Getting out of your car with the two people you thought up to that point were your friends, the one you just had met that night and the one you have been with before. And then suddenly, without warning, being jumped, being put into a choke hold, taken down to the ground and choked out. You're trying to gasp for air but the pressure from the choke hold doesn't let up. You don't know what's going on and at first you think it's a nightmare.
"We all on one occasion or another have experienced the sense of what it's like to be suffocated to a lesser degree, maybe when we've swallowed some water or beverage and it's gone down the wrong way. Maybe you were held underwater too long while swimming or playing in water as a child. Maybe we suffer from asthma or some other respiratory problem. Maybe we've had the wind knocked out of ourselves before. There's nothing more terrifying than a feeling of not being able to breathe. You're totally trapped. Trapped in darkness without the ability to breathe —
"Mr. Mann: I object to this, this is improper argument, based on the facts of the evidence in this case.
"The Court: Sustained. Proceed, Counsel.
"Ms. Ynostroza: You don't know what's going on. How long are you conscious in this situation? When do you know to fight? When do you get to fight? What are you thinking to yourself at that time, what did I do, why me. This hurts.
"Mr. Mann: Objection, same objection, your Honor.
"The Court: Sustained.
"Ms. Ynostroza: Defense is objecting because the defense believes that I'm painting too graphic a picture.
"Mr. Mann: Objection, your Honor, improper argument.
"The Court: Sustained. Counsel, proceed.
"Ms. Ynostroza: What I am describing to you is what happened in the last moments of Dipak's life, what the evidence shows at the end of Dipak's life, not what I want to say happened, what the evidence has shown happened.
"Your job as jurors is to determine how bad this murder was. You must decide what exists beyond the elements of murder and part of that is the pain and suffering of Dipak.
"Mr. Mann: Objection, pain and suffering of the victim is irrelevant and what he was feeling at the time was irrelevant.
"The Court: Sustained.
"Ms. Ynostroza: I know that you don't want to look at the photographs that I put up, you don't want to look at them but you need to. You need to understand what the evidence is in this case and what you have to work with, and that there's sufficient evidence to prove beyond a reasonable doubt that the defendant is guilty of murder.
"We as human beings want to turn off violence. We don't want to think about it, we want to forget. We want to numb ourselves to it. You may not have wanted to hear specific details about what happened to Dipak but you know that as jurors your role is to evaluate the evidence, and in so doing you need to consider what you're presented with.
"Hope makes the most unbearable situation bearable. When there's life there's hope. Dipak had hope and that hope was taken away at the hands of the defendant. No matter how horrible a situation is all we have is hope. The defendant's actions and the defendant's actions alone took and crushed the hope of Dipak but not just his —
"Mr. Mann: Objection, improper argument.
"The Court: Overruled. Proceed.
"Ms. Ynostroza: — not just his hope but the hope of family and friends. There's no evidence whatsoever that Dipak deserved this to happen. It's not right. It's not fair. It's not lawful conduct under the law as you'll be instructed. Defendant's violence touched various people. It's permanent. It's not right. It's bad enough to lose loved ones from natural causes but when it happens —
"Mr. Mann: Objection, your Honor, improper argument.
"The Court: Sustained. Proceed, Counsel.