Bechtel v. State

PARKS, Judge,

specially concurring:

Although I agree with everything said by my brother Judge Brett in his opinion, I feel compelled to address the issue of pros-ecutorial misconduct because of its pervasive and flagrant nature in the instant case. The behavior of the prosecutors can only be described as outrageous, and clearly violated the accused’s right to a fair trial free from prejudice. See Tobler v. State, 688 P.2d 350, 353 (Okl.Cr.1984). In this case, the prosecutors improperly vouched for the credibility of the State’s witnesses, stated that the defense was “attempting to smoke screen” the jury, and asserted that *562defense counsel and his witnesses were “lying.” This Court cannot and will not tolerate officers of the court engaging in such conduct, which is in violation of Section 3-5.8(b) of The ABA Standards for Criminal Justice, The Prosecution Function, (1980), and the standards set forth in DR 7-106(C)(4) & (6) of the Oklahoma Code of Professional Responsibility, 5 O.S.1981, Ch. 1, App. 3. Section 3-5.8(b) of The ABA Standards, supra, states in relevant part:

(b) It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.

The Oklahoma Code of Professional Responsibility, DR 7-106(C) states in relevant part:

In appearing in his professional capacity before a tribunal, a lawyer shall not: (4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.
(6) Engage in undignified or discourteous conduct which is degrading to a tribunal.

5 O.S.1981, Ch. 1, App. 3.

All officers of the court, whether prosecutors or defense counsel, are expected to be aware of, and to conduct themselves in compliance with, the foregoing standards. In addition, a remark was made which, when taken in context, can only be understood as accusing defense counsel of fabricating evidence. This uncalled for and unsupported remark constituted an improper attack on the credibility and character of defense counsel. See Stout v. State, 693 P.2d 617, 627 (Okl.Cr.1984). The record shows that the trial judge informed the prosecutor at the bench that the remark was “an improper statement” and that: “I wouldn’t be surprised if he hit you frankly.” This Court will not tolerate personal attacks upon opposing counsel. While zeal is an admirable quality in a prosecutor, he or she should not lose sight of the fact that his primary duty is not to convict, but to see that justice is done. See Tobler, supra, at 354. On the basis of the foregoing, I concur.