I was looking up the Hankins rape case because an eager reader noted that part of convicted rapist Nathan David Hankins’s unsuccessful appeal of his conviction was his contention that the State engaged in prosecutorial misconduct. My correspondent says Lawrence County state’s attorney John Fitzgerald prosecuted that case. That’s the same John Fitzgerald whom voters just elected to the Fourth Circuit bench.
Hankins argued to the South Dakota Supreme Court that his prosecutor persisted in a line of inflammatory questions even after the court sustained the defense’s objections and made inappropriate statements in the state’s closing argument rebuttal. The Supreme Court rejected the argument about the prosecutor’s questions, saying they “did not involve an attempt to persuade the jury by use of deception or by reprehensible means.” The Supreme Court agreed with the defense (and even the prosecutor acknowledged) that the prosecutor misbehaved when he said in rebuttal that calling a rape victim a liar is like raping her again:
The Supreme Court found that comment to be “an attempt to persuade by inappropriate means.” The Supreme Court found the comment more objectionable because it came in the rebuttal, when the defense had no chance to respond.
However, the Supreme Court held that the prosecutor’s error did not prejudice the jury and lead to a wrongful conviction. At trial, the defense immediately objected to the prosecutor’s overstep. The circuit upheld that objection, admonished the prosecutor, and later instructed the jury that the improper comment, along with the closing arguments in general, was not evidence.
The Supreme Court’s November 2 opinion notes that the defense argued that the same prosecutor—again, Fitzgerald, we assume—committed prosecutorial misconduct in a previous sex-crime trial. The defense cited the 1999 case of Bruce Edgar Smith, who was convicted on 18 counts of raping his stepdaughter. Smith argued that the prosecutor “deliberately inflamed the passions of the jurors”:
During closing arguments, the prosecutor called Smith a “monster … something scarier than anybody dressed up on Halloween.” The prosecutor repeatedly stated Smith was a “sexual predator,” a “tyrant in his own home,” that Smith “was not human,” a “pervert” and a “child molester.” He also claimed that Smith, “took away N.F.’s dignity,” “[h]e betrayed her trust,” “[h]e dominated N.F.,” “[he] did not treat N.F. like a human being, let alone a child or let alone a daughter.” He stated Smith “got his kicks forcing sex on a child.” He said Smith had “impregnated his stepdaughter when she was 13 years old and gave her his disease.”… The prosecutor argued N.F. was a “prisoner of war,” Smith had “held her captive,” and she had been “turned into a robot.” Counsel for the defendant repeatedly objected to the prosecutor’s inflammatory statements. The trial court sustained the objections and instructed the jury to disregard the prosecutor’s comments. Smith now claims the cumulative effects of the prosecutor’s inflammatory closing argument denied him his right to a fair trial [S.D. Supreme Court, opinion, State of South Dakota v. Bruce Edgar Smith, 1999.06.30].
The Supreme Court took a harsh view of the prosecutor’s harsh comments:
Closing arguments are not evidence. The argument should be no more than an accurate summary of the state of the evidence…. Juries are presumed to follow the trial court’s instruction that the attorneys’ final arguments do not constitute evidence. However, unfair closing arguments invite a jury decision by emotion rather than by evidence. This improper type of argument cuts to the heart of juror independence.
The prosecutor’s penchant for making statements meant to inflame the passion of the jury and go outside the realm of admissible evidence, is an example of the unprofessional, “win-at-all costs” attitude that scars the judicial system. In this case, the prosecutor’s statements in closing arguments border on the outrageous. Nothing necessitated these comments, especially considering the strong evidence against Smith. Although the prosecutor “may prosecute with earnestness and vigor. … [and] he may strike hard blows, he is not at liberty to strike foul ones.” …. Calling Smith a “monster” or a “pervert” was a foul blow, abhorrent and misconduct [State v. Smith, 1999].
However, as in the Hankins case, the Supreme Court ruled that the defense failed to show that the prosecutor’s misconduct prejudiced the jury, as the state also presented “overwhelming evidence that Smith committed the crimes of which he was charged.”
The law is the law, and rules are rules. Prosecutors should behave themselves. If state’s attorney John Fitzgerald has made inappropriately inflammatory comments about sex offenders in court, we must hope that Fourth Circuit Judge John Fitzgerald will not let his past excesses color his management of sex-crime cases and deny defendants of their full rights to fair trials.
But even if voters in the Fourth Circuit were aware of the Hankins and Smith cases when they picked Fitzgerald as a judge, I suspect most of them would not have been bothered by prosecutorial misconduct that consisted of inflammatory statements against child rapists. The things the prosecutor said about Smith are actually things I’d hope to hear the judge say when sentencing a child rapist and incestophile to rot in prison.
Paging the judge in the Joel Koskan case: Smith was sentenced to 100 years in the penitentiary, where he remains today. He is eligible for parole come January 10, 2023. He is on South Dakota’s sex offender registry.
Speaking of child rapists, which federal agency is investigating Denny Sanford?
Rape is the classic South Dakota pass time. I hope the judge doesn’t get bought out. It shouldn’t be considered for a no jail no registry deal. The job of the court is to keep people safe from all known rapists.
I recently watched an 8 part series called Unbelievable. It is based on true events and shows what often happens when a girl reports and the system fails to follow through. The guy never rapes once. My favorite line went something like, “This is an emergency but they don’t care because they’re not the ones worried this guy might rape them on their way home from work.”
Cory writes:
And that’s at the core of the problem. Label someone as a “rapist,” or a “stalker,” or a “terrorist” from the outset, and everyone involved in the person’s supposed “due process” from beginning to end is supposedly justified in bending the rules against that person. The cumulative effect of a little bias here and a little bias there ultimately destroys the lives of innocent people, inside or outside prison.
There’s no doubt in my mind that John Fitzgerald will be a horrible judge, because he’s a horrible human being.
I think the whole quote from the transcript is a classic answer to the question, “Why don’t child victims report at once?”
Because they’re traumatized.
Because they were told that something terrible will happen to them (and/or their family) if they ever tell anyone.
Because they’re told that no one will believe them.
Because they’re told that it was all love, not rape, and they’re an evil person for even doubting it.
Because often they’re made to swear that they’ll never tell anyone what happened. “It will be our little secret.”
Because they’re children.
Because they’re frightened children.
Because child rapists and incestophiles are monsters who are masters at manipulation and don’t stop just because they’re in court.
Mr. Evans often portrays his own “run in’s” with law enforcement and authority in general within his stories about others.
It’s called subconscious projection; although it’s often not subconscious.
It’s an overt appeal for assistance from the only group he feels comfortable with.
*examples given from above post ~
“the core of the problem”
“label someone as a “whatever”
“supposed “due process”
“bending the rules against that person”
“a little bias here and a little bias there”
“ultimately destroys the lives of innocent people”
If you think maybe your life would be better with someone to talk about yourself with, Kurt, please ask.
Help is widely available but it’s up to you to stop “portraying the victim” and ask.
Please, sir …
Eve is correct, and I might add that these are also reasons why a child victim might not want to appear in court and testify against the perpetrator, and why a prosecutor might be inclined to seek a plea accaptable to the defendant rather than force an unwilling and frightened victim to testify.
Kurt Evans you might change your mind if your child was a victim of a crime like this. Thank God we have prosecutors that fight for victims, especially the most vulnerable. You have no clue buddy.
In 2015, the commenter then known as Porter Lansing had written to me:
I’d responded:
What “sheet” were you saying you’d read, “P. Aitch”?
In my current comment above, I’d written:
The commenter formerly known as Porter Lansing responds:
It’s never subconscious.
From 2012:
https://www.mitchellrepublic.com/community/letters/letter-dwu-should-hear-all-sides-of-an-issue
From 2004:
https://groups.google.com/g/rec.music.christian/c/0fuc26fMYUE
To reiterate, Kurt Evans: If you’d stop claiming to be a victim and see yourself for what you truly are, help is widely available. I see, however that you’re in a downward spiral and nothing healthy for you awaits without your intervention in your own mental health issues.
In 2015, the commenter then known as Porter Lansing had written to me:
In my preceding comment above, I’d asked:
The commenter formerly known as Porter Lansing responds:
No, help isn’t widely available, especially not from agents of so-called “law enforcement” or agents of our so-called “justice” system.
What “sheet” were you saying you’d read?
I read your question, Kurt. I don’t answer questions on demand.
– I’m advising you to speak to a doctor about your symptoms of mental health degeneration over tha past seven years.
– The Division of Behavioral Health contracts with 11 accredited community mental health centers across the state to provide quality services to both adults and youth. Services provided include screenings and assessments, specialized outpatient services, individual therapy, group therapy, and crisis intervention. Funding assistance may be available, contact your local treatment agency for more information. Learn about available mental health services below.
– South Dakota Community Mental Health Center Flyer
Mental Health Services Brochure
Justice Involved Services for Youth Flyer
OnTrackSD
https://dss.sd.gov/behavioralhealth/services.aspx
The commenter formerly known as Porter Lansing had written to me:
I’d asked:
The commenter formerly known as Porter Lansing responds:
*the
Why only seven? I’m advising you to stop engaging in deliberate defamation and other criminal electronic harassment.
You got it, Kurt Evans. I’ll not speak to you or of you again. Unless I change my mind. You, however, are free to express your opinion about me at will.
Sincerely
PHLIV