Can a prosecutor suggest during a closing argument that the defendant, his attorney, and a psychiatrist colluded to fabricate a defense of extreme emotional disturbance if the prosecutor subsequently states that the defense attorney is not unethical and that the psychiatrist did not necessarily perjure himself?
This is the odd question addressed in the Supreme Court's decision in Parker v. Matthews. The Supreme Court held that the prosecutor's statements taken together did not rise to the level of violating the defendant's due process rights. Here are the prosecutor's allegedly improper comments in full:
“He’s arraigned, he meets with his attorney and either he tells his attorney, I did it or I didn’t do it. One or the other. But, the attorney knows what the evidence is. By the way, the defendant knows what the evidence is, because while he’s giving this statement, it’s sitting right in front of him at the Homicide Office. Here’s the gun. Here’s the shoes, David. ‘Nah, nah, I never saw it before. I never borrowed a gun. I never borrowed any money. I wasn’t there. I was at home in bed asleep.’ He’s denying it there.
And what does his attorney think? His attorney sees all this evidence, and he’s going through his mind, what kind of legal excuse can I have? What is this man’s defense? Self protection? No, there’s no proof of a gun found at that house on 310 North 24th Street. No proof of that. Protection of another? The defendant’s mother is at home on Lytle Street. He isn’t protecting her over there on North 24th Street. Intoxication? Yeah, well, he was drinking that night. Maybe that will mean something.
But that isn’t enough, Ladies and Gentlemen. Mr. Busse has to contact a psychiatrist to see his client, and he comes in and sees his client one month after the day of his arrest, one month to the day, and by that time, Mr. David Eugene Matthews sees his defense in the form of Doctor Chutkow, and do you think this guy is aware of what’s going on? He’s competent. He can work with his attorney, and he enhances his story to Doctor Chutkow. Yeah, I was drinking. I was drinking a lot. I was taking a lot of pills, too, and let me tell you about the pills I was taking.
Don’t you think he has a purpose in enhancing his story to the psychiatrist? Don’t you think he would exaggerate his fears about his wife, his mother-in-law, and all these other things about what other people might be doing to his mother? Don’t you think he would overstate the extent of his intoxication to his psychiatrist? It’s the defense of last resort, Ladies and Gentlemen. He has no excuse for his conduct, but that’s his only way out."
The Supreme Court believed that the Sixth Circuit erred in failing to take into account the following corrective remarks made by the prosecutor:
“And that’s not to say that Mr. Busse is unethical. Not at all. He is entitled to the best defense he can get, but that’s the only defense he has, what the doctor has to say, and that’s not to say that the doctor gets on the stand and perjures himself. He’s telling you the truth. He wouldn’t perjure himself for anything. He’s telling you the truth, Ladies and Gentlemen.”
Prof. Tushnet suggests on Balkinization that the Court's analysis of the prosecutor's comments was simplistic, and in my view the title of Prof. Tushnet's post ("Brutus is an honorable man") quite nicely captures the chief deficiency in the Supreme Court's reasoning. The impact of the prosecutor's long diatribe (flight of fancy, really) on the jury cannot be defused with brief platitudes (to the extent that the jury will even recall the corrective remarks).
In any event, whatever one's views on the merits of the Supreme Court's decision, I think there are strong grounds to believe that the prosecutor violated Model Rule 3.4(e), which the Court did not cite in its opinion. The prosecutor seems to have alluded to collusion where no facts supported such a charge and also opined on the credibility of the psychiatrist and the guilt of the accused.
The Supreme Court's analysis does raise an interesting question, however. From a legal ethics standpoint, should a prosecutor be allowed to make statements during a closing argument that are prohibited by Model Rule 3.4(e) if he or she later disavows those statements in the same closing? (I have in mind here a much more robust disclaimer than the one offered by the prosecutor in Parker).
Presumably prosecutors should be afforded some leeway to correct statements that they wish they had not made. On the other hand, when a prosecutor makes a comment that runs afoul of 3.4(e), that is bound to have a significant effect on a jury, regardless of whether or not the prosecutor later seeks to correct his previous comment. Given that closing statements are usually not spontaneously delivered and prosecutors' roles as "ministers of justice," my view is that it would be inappropriate for a prosecutor to avoid sanction under 3.4(e) because he/she disclaimed an offending comment towards the end of his/her closing.
One additional complaint about Parker. Neither the Supreme Court nor Sixth Circuit opinion appears to name the prosecutor in the case whereas Mr. Busse, the defense attorney, has been immortalized for his relatively minor role. Given civil immunities and the paucity of disciplinary cases against prosecutors, one of the only constraints on prosecutors is for other members of the bar to name and shame them when they appear to commit misconduct.