Supreme Court of South Carolina Finds Prosecutor’s Comment About the Job of Defense Counsel Required Reversal
Imagine that a prosecutor makes the following statements to the jury during closing arguments:
“My job is to present the truth,” and said, “if you look in the . . . Code of Laws . . . [, I] have to say what the truth is.” “On the other hand,” the prosecutor told the jury, “the defense attorneys’ jobs are to manipulate the truth. Their job is to shroud the truth. Their job is [to] confuse jurors. Their job is to do whatever they have to — without regard for the truth.” The prosecutor explained that if he—the prosecutor— believes “somebody else did the crime,” then he must “dismiss it.” “And [if] I know the person has done something that I think the facts show they’re guilty of, then I can’t [dismiss] it. I have to go forward with it.”
Would such statements be grounds for a new trial?
These were the facts in Fortune v. State, 837 S.E.2d 37 (S.C. 2019), in which Oscar Fortune with murder and possession of a weapon during the commission of a violent crime in connection with a shooting in the parking lot of the Huddle House in Cheraw, South Carolina In finding that these comments were improper the Supreme Court held that
The PCR court found the remarks were “improper.” We find they were absolutely inexcusable. The assistant solicitor told the jury he has a statutory duty to screen cases, he suggested he had already determined Fortune was guilty, and he claimed he would have dismissed the case if he determined otherwise.
Courts have universally condemned comments like this.
The court then found that these comments were sufficiently prejudicial to require reversal, holding as follows:
Turning squarely now to whether the assistant solicitor’s misconduct prejudiced Fortune, we find our discussion so far leaves little need for further analysis. As we cautioned in State v. Thomas, “arguments of this kind can rarely be harmless.”….
[T]he trial judge’s “curative” instruction actually exacerbated the assistant solicitor’s misconduct. The trial court stated, “I think what he was referring to was there is also an obligation on the Solicitor’s Office beyond simply that of presentation.” (emphasis added). The assistant solicitor had just told the jury he had an obligation “to present the truth,” and the trial court responded by telling the jury yes, in fact, the solicitor does have “an obligation … beyond simply that of presentation.” Then, immediately after the trial court’s validation of the solicitor’s “obligation” to be truthful, the assistant solicitor proceeded to inform the jury that, in fulfilling that obligation, if “I know the person has done something that I think the facts show they’re guilty of, then I can’t [dismiss the case]. I have to go forward with it.”