The Joys of Visual Aids

GUILTY!   GUILTY!   GUILTY!

Just superimpose the words over a defendant's booking photo and, bingo, the prosecution has its summation in the bag.

DO YOU BELIEVE HIM?

Unless you've got a mugshot like Tom Delay, the answer is likely to be "no way."  So is this the new normal in powerpoint presentations during the prosecution's closing statement?  Well, not exactly, as the Supreme Court of Washington nixed the notion in In re Glasmann.  Lest you think sanity was the order of the day, however, it was a 5-4 decision.

The majority didn't really see the issue as particularly difficult to decide.

“The prosecutor’s misconduct was flagrant, ill intentioned and we cannot conclude with any confidence that it did not have an effect on the outcome of the trial,” Chief Justice Barbara Madsen wrote for the majority in an opinion released Thursday.

The prosecution, on the other hand, didn't see why this was a problem.

Prosecutor Mark Lindquist said he thought the majority made a bad call.

“The majority opinion is correct in recognizing that prosecutors are quasi-judicial figures,” he said. “We have a duty to seek justice and be fully professional. The opinion takes a strange turn, though, in finding reversible misconduct because a former deputy prosecutor superimposed the word ‘guilty’ on a PowerPoint slide with a booking photo.

“This was unnecessarily melodramatic, but did not affect the outcome.”

They remain confident given what they characterize as overwhelming evidence against the defendant that they will obtain a conviction on retrial, and they may well be right.  But that's hardly the point.

There is fair argument, grounded in the admissible evidence in the case, and the prosecution and defense are entitled to present that argument to the jury.  They may argue for a conviction or acquittal based upon the evidence. They may ask the jury to return the verdict they seek.  What they can't do, however, is put on a donkey show having no bearing on the evidence and reflecting nothing more than an "unnecessarily melodramatic" personal opinions.

Oh yeah. And they can't use an image to shift the burden of proof to the defendant by making it appear that it's his duty to persuade the jury of his innocence.  That too.

“A prosecutor could never shout in closing argument that ‘Glasmann is guilty, guilty, guilty!’ and it would be highly prejudicial to do so,” Madsen wrote. “Doing this visually through use of slides showing Glasmann’s battered face and superimposing red capital letters (red, the color of blood and the color used to denote losses) is even more prejudicial.”

The dissent didn't adopt the prosecution's use of technology, but rather found the evidence so overwhelming that the error was harmless.

Justice Charles Wiggins wrote the dissent.

He agreed Hillman “improperly expressed a personal opinion about Edward Glasmann’s guilt” but said he would have only overturned the defendant’s second-degree assault conviction, letting the other three stand.

The evidence was so overwhelming on the other counts that Hillman’s PowerPoint likely played no part in the jury’s decision to convict Glasmann of those crimes, Wiggins wrote.

Harmless error analysis is the bane of the defense, as its perspective is circular and the ends justify the means.  The court takes the view that since the evidence against the defendant which is derived out of an unfair or improper trial is so strong that, in the court's view, the absence of error wouldn't change the outcome, why bother to put everyone through the trouble to get it right? 

The failure of harmless error analysis is that if the trial was conducted properly in the first place, perhaps the evidence would have come in differently, or not at all, or subject to doubt, and not been as damning to the appellate judge as it is after an unfair trial.  It may not always be the case, but as a matter of doctrine, harmless error is about as fundamentally unjustifiable a basis to sweep impropriety under the rug as there can be.

In order to overcome the hurdle of harmless error analysis, the majority held that the egregious conduct in the closing argument precluded their having confidence in the verdict. That they were constrained to hold this is a reflection of the inanity of harmless error. It's not enough that the defendant was denied a fair trial. It's not enough that the prosecutor engaged in "flagrant, ill intentioned" impropriety.  It's not enough that the trial judge allowed this to happen. 

The notion that due process requires that a defendant be afforded a fair trial, without regard to whether the evidence against him is overwhelming (according to some appellate judges), should be more than good reason to reverse a conviction where it just didn't happen.  It's disingenuous to pretend that trials are glorious things where every defendant has the right to challenge the prosecution to prove him guilty, but after being denied a fair trial, be constrained not merely to demand that his constitutional rights be honored but that he's otherwise worthy of a fair trial.

Of course, nothing in the decision says that the defense can't put together a really cool powerpoint with the words "liar, liar, liar" superimposed over the cop's photo.  Food for thought.

H/T WSJ Law Blog

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