(dissenting).
I join in the dissent of Justice Paul H. Anderson.
APPENDIX
The following are excerpts from the State’s closing argument that illustrate the inflated rhetoric used by the State. Some of the statements require no comment; others have an additional note following the statement indicating why the comment may have been irrelevant, improper, or an inappropriate appeal to emotion in an effort to prejudice the jury. All quotes are presented verbatim.
A. Medical Examiner Testimony
As a result of that autopsy, the cause of death, according to [the medical examiner] and according to [defendant’s doctor], frankly, is complications of blunt force cranial cerebral injuries. [The medical examiner], based on all of the information that’s provided to him and his autopsy findings and the medical records, determines that the manner of death is homicide[;] death at the hands of another. It’s not accident.
Transcript at 2695.
This passage highlights how the medical examiner stepped over the line and into the province of the jury by incorporating other “information that’s provided to him” into his conclusions rather than limiting himself to describing the results of his forensic work. The passage also shows how the State exacerbated the medical examiner’s trespass by leveraging the authority and credibility of the medical examiner’s position to bolster the jurors’ acceptance of conclusions that should only be made by the jurors themselves.
B. Injuries to Children Not Attributable to Hayes
This section contains several passages in which the State describes injuries to T.D.’s children. The State provides no evidence that Hayes actually caused these injuries. In many cases, the State even admits that Hayes did not cause them. The only possible reason for the prosecutor to describe such injuries, especially at this length, is to insinuate to the jury that Hayes actually harmed these children and thus deserves to be punished. Such prejudicial tactics do nothing to establish whether Hayes actual*566ly committed the crime for which he was charged, and therefore are not helpful to the jury. The statements also violate the prosecutor’s duty to the defendant and the court, and his role as a minister of justice. The relevant passages are as follows:
In [C.A.]’s case, she was examined by [a doctor] at Children’s Hospital. You’ll have a chance to look at these pictures. It’s kind of a little sad face there trying to show the bruise on her forehead. But most significantly from [the doctor’s] standpoint are the bruises on her right ear including this area in the conchal bowl I think was the name and then on the back; that kind of bruise that comes from basically boxing her ears. She’s also got this big bruise on her back and another bruise kind of up here by her eye next to where it got cut on the table when the defendant and [T.D.] were both in the living room. And there’s another kind of area here on her left ear as well. And even the defendant admits that at one point, Robert had a bruise on his ear too that [T.D.] had seen and that he attributed to [C.A.] having pushed Robert off the sofa.
Transcript at 2673-74.
On June — I’m sorry, July 20th of '05, [M.H.] was taken in to see [a doctor] for a fractured left arm after she got pushed off a-slide. [T.D.] didn’t see that happen but the children who did witness it came in, including the little boy I believe she said it was who actually pushed [M.H.] off the slide. And they tell [T.D.] that’s what happened. Contrast that with so many of the injuries that happened to Robert and that happened to [C.A.] during that last month of Robert’s life. Let’s fast forward to April 25th of 2008. [T.D.] takes Robert in to see [a doctor] and he ends up being hospitalized for two days because he’s got pneumonia. On May 22nd of 2008, [A.S.] took Robert in to see [a doctor] for coughing and wheezing. On June 11th of '08, [M.H.]’s elbow gets sprained while she’s wrestling with [D.H.] and [D.H.] admitted that. And [M.H.]’s old enough. She can talk about this so there’s no question that that’s what happened. There’s an explanation there. On June 15th of 2008, [T.D.] moves to [a new address]. (Coughs) Either at the end of June or sometime early July, the defendant moves into the home with [T.D.] and he says that he babysits the children ninety percent of the time when [T.D.] is at work at [a fast-food restaurant] a few blocks away. On July 22nd, [C.A.] sees [a doctor] for a facial laceration which you can see here in Exhibit 57 right at kind of the corner of her eye when her — when she’s pushed off the table. And neither [T.D.] nor the defendant did that. They’re in the living room when that happens but the kids come in and they say this is what happened.
Transcript at 2684-85.
On September 12th, [D.H.] is seen for his kind of stomach cramping and constipation problems which once he got out of the home, frankly it resolved itself, as have the other issues in many respects the children had to deal with. On September 15th of 2008, [T.D.] ’s at work and she gets a call from the defendant telling her that [C.A.] had pushed Robert off of the couch. That’s the defendant’s version of what had happened.
Transcript at 2686-87.
So here, he[’]s again coming up with an explanation for what he believes at that point to be a leg fracture and — and he[’]s blaming [D.H.] for it. And [D.H.] did tell you one time he did pull — pull Robert[’]s leg and [T.D.] says she saw Robert ah and — and [D.H.] in some kind *567of wrestling situation although she said it was kind of a headlock sort of thing.
Transcript at 2712.
The defendant’s story does not account for Robert’s devastating and his fatal brain injury and the complex branching skull fracture. The defendant’s story doesn’t account for Robert’s multiple rib fractures. The defendant’s story doesn’t account for Robert’s arm fracture.
Transcript at 2715-16.
While the last passage may not be as clear as the others, it is problematic because the medical examiner testified that Robert’s arm fracture was already healing at the time of his death. Therefore, the arm injury appears to have happened before the fatal head injury, and the State presented no evidence showing that Hayes caused the arm injury or was even present when the arm injury occurred. It would be odd for the prosecutor to expect Hayes’s story to account for an injury that Robert suffered at some indefinite time in the past. A more plausible explanation for the prosecutor’s statement is that the prosecutor believed it would be advantageous to present the jury with yet another injury to an infant, hoping that the emotional impact of hearing about the injury would help to obscure the fact that the prosecutor was attempting to discredit Hayes for failing to explain something the prosecutor had no reason to expect Hayes to know.
C. Inflated Rhetoric, Innuendo, Insinuation, and Suggestion
The common theme in this set of excerpts is the prosecutor’s failure to fulfill his duty as a minister of justice. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). While many of these examples may be defensible in isolation, collectively they indicate an improper focus on obtaining a conviction rather than ensuring that “justice shall be done.” Id.
1. Appeal to Emotion, Not Reason
In this case, there is not a confession from the defendant that he brutally slammed Robert’s head into a hard surface causing that acute and ultimately fatal brain injury but we do have evidence of the nature of the injuries that little Robert suffered and the injuries that [C.A.] suffered as well.
Transcript at 2668.
Robert ... was not able to testify because Robert isn’t with us anymore. But Robert did testify in effect through the various doctors in this case because he couldn’t talk. But those doctors, whether it’s at the — the clinic here in town or Children’s Hospital or at the Hennepin County Medical
Examiner’s Office, are here speaking for Robert telling us what Robert could tell us if he were alive and if at the time the defendant was assaulting him he had been able to talk.
Transcript at 2671.
The preceding two passages represent an appeal to the jury’s emotion, rather than reason. For one thing, Robert would be unable to testify in any scenario because Robert was 13 months old at the time of his death. But more importantly, to claim that Robert was speaking through the doctors who testified at the trial appears oriented toward subtly misleading the jurors about the testimony the medical professionals actually gave. The medical professionals testified about the injuries Robert suffered, and that they were confident, though not certain, that Robert’s cranial fracture was more severe than would be caused by the fall Hayes described. But the medical professionals did not testi*568fy that Hayes “assaulted” Robert by “brutally slamm[ing] Robert’s head into a hard surface.” The foregoing statement by the prosecutor is another example of leveraging the authority and credibility of medical experts to support assertions that those experts cannot — and in most cases, did not — put forward.
2. Hayes’s Parenting Skills
Well how much does a two year old like [C.A.] listen? How much does a thirteen month old like Robert listen? What are the defendant’s expectations? What frustrates parents or adults taking care of kids when kids don’t meet your expectations?
Transcript at 2688.
Does the defendant expect these kids to act like little adults? And [M.H.], she’s five years old at the time. She’s expected to pick up her room, clean up the yard because they’re bringing all the junk home. And the defendant, what’s he doing? Apparently not doing housework, that’s up to the kids. He apparently does change diapers but his method for doing that in the ease of Robert is he sticks him in the tub and washes him off and puts a diaper on him. How did the defendant refer to these children that' he claims to love as his own? “These f-ing kids.” That tells us something about the defendant’s attitude and thus his actions toward [T.D.’s] kids.
Transcript at 2688-89.
And where is he when he’s making that phone call? He’s outside the house. Is he outside the house because Robert’s been crying even before that and is starting to get to him so he goes out on the porch? Cause [C.A.] ’s home. She’s watching this DVD, you know, “Surfs Up,” — kinda put in the DVD, that’s better than having to interact with the kids. You know, kind of built in babysitting with the television set.
Transcript at 2692.
Again, is that expecting a ten year old child to act like an adult? Who’s the adult in this situation? Who’s the caretaker for Robert? Who’s the one that [T.D.] was depending on to watch out for her kids?
Transcript at 2707.
In the preceding passages, the prosecutor repeatedly insulted and ridiculed Hayes’s parenting methods. At best, the prosecutor’s insulting and mocking statements were irrelevant and unprofessional. But given the other examples of troubling prosecutorial conduct found in this case, the prosecutor’s words might be viewed as part of a broader effort to convince the jury that, because Hayes is a bad person, they should feel comfortable finding him guilty even if they harbor doubts about the sufficiency of the State’s evidence. While prosecutors are permitted some latitude to make mistakes without undue fear that appellate courts will construe their statements as intentional wrongdoing, at a certain point, a pattern of minor transgressions becomes too conspicuous to ignore and too convenient to excuse. I fear this case presents such a scenario.
3. Explanation of Fall
Now the defendant tells [B.C.] that he’s not sure how Robert had fallen because he didn’t pay attention to how he landed. How reasonable is that for an adult who’s concerned about a child, particularly one as young as Robert that when he starts to fall, he isn’t gonna watch what’s happening to the kid. I submit that most adults in that situation are not gonna let go of a child.
Transcript at 2704.
To suggest that Hayes’s split-second act, taken while suddenly and unexpectedly falling, can somehow demonstrate that *569Hayes had no concern for Robert’s welfare is absurd. Even professional football players — among the finest athletes -in the world — often fumble when hit unexpectedly, and their livelihoods depend on holding onto the ball. Moreover, had Hayes failed to let go of Robert, as the prosecutor appears to suggest as a preferable alternative, Hayes may well have landed on Robert, perhaps placing' him in even greater danger. A useful test is this: had Robert been crushed under Hayes, would the prosecutor have described Hayes’s refusal to let go of him as a demonstration of care and concern? It is hard to believe that anyone could read this closing argument and answer that question in the affirmative.
4. A “ChildMolester”
He says that he would, “beat the shit out of a man” but he denied being a “woman beater,” a “child beater” or a “child molester.” We are not accusing the defendant of being a child molester.
Transcript at 2715.
This statement by the prosecutor is particularly egregious. The prosecutor appears to include this passage in his closing argument solely for the, purpose of repeating the phrase “child molester” to a jury already bombarded with emotionally powerful descriptions of severe injuries to young children. There is no suggestion anywhere in the record that Hayes engaged in any sort of sexual abuse of T.D.’s (or any) children, so the act of priming the jury with even more emotionally charged, disgust-provoking language appears to have been a calculated plan to induce attitudes of revulsion toward the defendant for reprehensible acts that he simply did not commit.