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.