Rodriguez v. State

BROOK, Chief Judge,

concurring.

I fully coneur in the majority's opinion, but I write separately to condemn the tactics of the prosecutor in this case. Al though the instances cited by Rodriguez did not rise to the level of misconduct or *1060fundamental error, they do evidence a troubling disregard for the Rules of Professional Conduct and a ruthless desire to win at any cost, neither of which has a place in our criminal justice system.

As a lawyer, a prosecutor is expected to "act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf." Ind. Professional Conduct Rule 1.3 emt. As a lawyer representing the State of Indiana, however, a prosecutor has the special "responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence." Ind. Professional Conduct Rule 3.8 emt.

As Justice Sutherland explained under analogous cireumstances,

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1985), overruled on other grounds, Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).3

By brandishing the shotgun and offering her personal opinion during closing argument, the prosecutor improperly exploited the jury's sympathy and emotions. I agree with my colleagues that these actions did not constitute reversible error, but I feel compelled to advise both sides of the criminal bar that our decision should not be interpreted as giving a "green light" to similar conduct in future cases. A prosecutor who repeatedly attempts to win cases based on anything other than the evidence adduced at trial will eventually lose cases for the State on appeal, as well as the trust of both the judiciary and the public.

. I recognize that as appointed officials, federal district attorneys are largely insulated from the political pressures faced by elected prosecuting attorneys and their deputies at the local level. Nevertheless, I believe that elected prosecutors cannot cite these political pressures as a justification for securing convictions at any cost; given that the voting public has entrusted them with the awesome responsibility of deciding whether to file criminal charges against their fellow citizens, they must be equally mindful of their "duty to refrain from improper methods calculated to produce a wrongful conviction." I also recognize that a prosecutor must be passionate to be an effective advocate, but this passion cannot take the form of grandstanding or injecting personal opinion into a case.