Supreme Court Says Prosecutor Went Too Far In Criticizing Defense Strategy

, The Connecticut Law Tribune

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The state's highest court has overturned the conviction of a Bethel man who was sentenced in 2010 to six years behind bars for allegedly molesting an 8-year-old girl.

While it's still unknown whether the defendant, Michael Maguire, will be retried, the case will likely be remembered most for why the court threw out the conviction in the first place—prosecutorial misconduct. The state Supreme Court justices took particular exception to Danbury assistant state's attorney Sharmese Hodge's closing argument.

Specifically, Maguire claimed the prosecutor acted improperly by repeatedly asserting during her rebuttal closing argument that both Maguire and his defense lawyer at the trial, Norman Pattis, were asking the jury to "condone child abuse," that Maguire's testimony was "coached," and that the defense strategy was a game of "smoke and mirrors."

Justice Richard Palmer did not mince words in the court's 28-page unanimous decision.

"We are hard-pressed to imagine any defense argument that properly could be described by the state in the provocative terms that the prosecutor used in the present case," wrote Palmer. "Again, we are perplexed … because a prosecutor never is justified in intentionally mischaracterizing the defense theory of the case or in falsely accusing defense counsel of lying to the victim and the jury, and there is no mistaking the improper purpose of such argument by the prosecutor in the present case and its intended effect on the jury."

Danbury State's Attorney Stephen Sedensky III said Hodge was on trial last week and unavailable to comment. Hodge, in her early 30s, has been practicing law since 2004 and was hired as an assistant state's attorney in 2007.

"We are disappointed with the decision," Sedensky told the Law Tribune. "We believe and argued that the case should've been upheld. We have been in contact with the victim's family and are in the process of determining whether the case will be retried."

Sedensky declined to discuss the prosecutorial impropriety cited by the Supreme Court. Chief State's Attorney Kevin Kane said the state would review what went on at the trial "in depth. Certainly it will result in a training bulletin and what additional steps, if any, we will take will depend on a more thorough review."

Kane said his office has a policy in which there is an automatic review whenever a prosecutor is found to have acted inappropriately. He noted that it doesn't take an admonishment from an appellate court to prompt a review. Responses, he said, can range from teaching points in bulletins distributed to all prosecutors or delivered during the annual two-day state's attorneys training session, to counseling of an individual prosecutor, or even discipline.

However, administering discipline is not a quick, easy process, as rank-and-file prosecutors fall under a union contract.

Another notable case of prosecutorial misconduct came earlier this year. In the state Appellate Court ruling in State v. Santiago, the judges said that Senior Assistant State's Attorney Terence Mariani made several improper comments during a murder trial, and that he had been previously warned about such conduct by state Supreme Court justices.

The conviction was overturned in the Santiago case. But though attorneys agree that prosecutorial impropriety is often alleged in criminal case appeals, it is rare for the courts to agree that it occurred and even rarer to overturn a conviction because of it.

'Bunch Of Excuses'

In the most recent case, Maguire, 47, was arrested in 2008 for allegedly molesting an 8-year-old girl. He sometimes served as a babysitter for the girl and her 10-year-old brother. It was the boy who reported the alleged sexual contact to his mother's cousin. Maguire was the boyfriend of a different cousin.

Charges against Maguire included first-degree sexual assault and felony risk of injury to a minor. The jury acquitted him of the more severe sexual assault charge, but convicted him of misdemeanor sexual assault and risk of injury to a minor. Maguire, who was sentenced to six years in prison, has remained free pending the outcome of the appeal.

During the trial, the defendant argued that the girl fabricated the story about the molestation and then repeated the lie to an older brother in the backyard. Pattis, the defense lawyer, argued that the lie took a life of its own when the boy repeated it to an adult, prompting investigations from the Department of Children and Families and police.

Pattis also asserted that the lie had the immediate effect of reuniting the alleged victim's parents, who, until that moment, had been "at war" with one another, "a fact that could not have been lost on the victim."

The defense attorney also noted that the girl's account of what happened changed significantly during the two years between the arrest and trial.

During her closing argument, Hodge's told the jury: "What [defense counsel's] asking you for is to condone child abuse. … I would assume what you wanted to hear was the truth, not a bunch of excuses, not … a big cloud of smoke and mirrors. … You wanted to hear the truth. That's not what you heard. You heard a … coached conversation between a defense attorney and his client."

Hodge continued: "It's not a secret that child abuse is a crime. But what counsel's asking you to do is to say that … child abuse that happens in secret is legal, and that is not the law. I ask you to find the defendant guilty."

On appeal, prosecutors argued that Pattis' closing argument invited Hodge's comments during her rebuttal. They added that even if the comments were improper, they were harmless error that should not affect the conviction. The prosecution further noted that Pattis never objected to Hodge's remarks.

Nevertheless, the justices sided with Maguire's appellate lawyer, Richard Emanuel, who argued that the remarks prevented his client from getting a fair shake with the jury.

"If the prosecutor had wished to focus the jury on weaknesses in the defendant's theory of defense, there were ample ways for her to do so that would not have involved belittling remarks or personal attacks on the credibility of the defendant and defense counsel," wrote Palmer.

Emanuel said he was pleased with the ruling.

"I think the Supreme Court opinion is a strong affirmation of the principal that prosecutors are prohibited from impugning the integrity and veracity of defense counsel and denigrating the defense theory of the case," he said. "My client and his family are very grateful that the court has reversed his convictions."•

What's being said

  • Re my previous statement, I SHOULD HAVE reviewed it before posting it! :/

  • I PERSONALLY KNOW of a defendant who Sharmese Hodge ALSO SLANDERED IN COURT (but in this case, it was during a pretrial hearing)...and just like the defense attorney listed above, the "Public PRETENDER" said NOTHING!!!!!

    DESPITE THE MANY INjustices happening to this particular defendant, NO ONE EVER ACKNOWLEDGES BEING ABLE TO HELP, AND SO NOTHING HAS EVER BEEN DONE (this system is MOST DEFINITELY SET UP TO ONLY SERVE "JUSTICE" TO THOSE WHO CAN AFFORD TO BUY IT)!!!!! >:P IT!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

  • Noah Webster

    Strong affirmation of the PRINCIPLE

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