People v Williams, __ AD3d __ [available here]
The prosecutor at Mr. Williams' murder trial was "derisive and sarcastic", accusing a main defense witness of smoking crack and asking that same witness to apologize "to the victim's wife for lacking 'the courage to stand up and tell [the] jury the truth.'" (Williams, __ AD3d at __ [GORSKI & GREEN, Js, dissenting).) During summation, the prosecutor personally opined on the credibility of the witnesses ("I wouldn't believe [that witness] if she told me I had a gray pinstripe suit on") and "accused defendant, the final witness to testify at trial, of tailoring his testimony to the evidence presented, and the prosecutor invited the jury to 'assume [defendant's] right. Let's--let's go to Disney World for a minute.'" (Id.)
On appeal, Mr. Williams argued that the prosecutor's misconduct deprived him of his right to a fair trial and reversal was necessary. A majority of the Fourth Department disagreed, noting "that certain of the prosecutor's comments during cross-examination of a defense witness were improper," but the misconduct was not "so egregious as to deprive defendant of a fair trial." (Williams, __ AD3d at __.) As to the misconduct during summation, the majority concluded "the prosecutor's comments . . . were fair comment on the evidence," and in any event were "alleviated" by the trial court's charge that the summations of counsel were not evidence. (Id. at __.)
Justices Gorski and Green dissented, and would have reversed. From the dissent:
Although we recognize that reversal 'is an ill-suited remedy for prosecutorial misconduct', reversal for prosecutorial misconduct is nevertheless warranted when the prosecutor's conduct is so egregious that the defendant was deprived of his or her right to a fair trial. [...]
Here, the evidence of defendant's guilt is not overwhelming and, as we previously noted, the outcome of the case was dependent solely on the credibility of the witnesses. It is our conclusion that the prosecutor's cross-examination of the defense witness as set forth herein, in conjunction with the prosecutor's improper comments on summation regarding that witness as well as the alibi witnesses, could have 'tip[ped] the scales'' against defendant.
(Williams, __ AD3d at __ [GORSKI & GREEN, Js, dissenting].)
More on the leftovers from the Fourth Department's April term over the next few days.