Supreme Court of Kansas Finds Prosecutor’s “Self-Deprecating Lawyer Joke” at Murder Trial Wasn’t Prosecutorial Error
Although you may disagree with their methodology, social psychologists have found that it takes 36 days after a tragedy before jokes about it become funny. What about jokes by a lawyer at a murder trial? Well, who knows about whether jokes by a prosecutors at such a trial are funny, but are they objectionable? That was the question that the Supreme Court of Kansas referenced in its recent opinion in State v. Willis, 475 P.3d 324 (Kan. 2020).
In Willis, Dale Willis was charged with first-degree murder and battery based on the following facts:
As [Jurl] Carter was attempting to leave [the Roxy bar], [Dale] Willis pointed three times at Carter signaling to another man later identified as Willis’ brother, James Willis. The brothers walked to the passenger side of the car, and James Willis fired between 10 and 20 rounds from a pistol into the passenger side door and window. Dale and James Willis then fled together. Carter died as the result of several center body mass gunshot wounds.
At trial, the State’s theory was that Willis had aided and abetted James Willis in the premeditated murder of Carter.
During closing arguments, “[w]hile explaining the concept of lesser-included offenses, the prosecutor said: ‘Now you heard us talk about lesser-included offenses because we’re not lawyers unless we’re trying to just add things and confuse things.'” After he was convicted, Willis appealed, claiming that this comment was prosecutorial error.
The Supreme Court of Kansas disagreed, concluding that
Jokes are typically permissible as part of closing arguments. See, e.g., State v. Reynolds, 120 Idaho 445, 450, 816 P.2d 1002 (Ct. App. 1991) (“Thus, in making his or her concluding oration, the prosecuting attorney may resort to poetry, cite fiction, reference anecdotes or tell jokes.”); Gaede v. State, 801 N.W.2d 707, 710 (N.D. 2011); People v. Beck, No. A135537, 2013 WL 6688965, at *5 (Cal. Ct. App. 2013) (unpublished opinion); United States v. Robinson, 404 Fed. Appx. 77, 81 (7th Cir. 2010) (unpublished opinion) (holding a joke that maybe one day the defense counsel will turn his life around and become a prosecutor was “[a] harmless joke” that “neither disparaged the credibility of the defense counsel nor shifted the jury’s attention from the legal issues”); United States v. Haque, 315 Fed. Appx. 510, 520 (6th Cir. 2009) (unpublished opinion) (finding that the joke 2 plus 2 equals “what do you want it to be?” was not error in an accounting fraud case); Lawson v. Sec’y DOC, No. 2:16-CV-85-FTM-29MRM, 2017 WL 4271664, at *11 (M.D. Fla. 2017) (unpublished opinion) (noting, “Counsel’s comment that he ‘could do [closing argument] in ten [minutes], but [the court reporter] won’t like having to type it all down’ was a joke.”), aff’d 785 Fed.Appx. 722 (11th Cir. 2019) (unpublished opinion).
Even barbs disparaging lawyers have passed muster. See McDaniel v. McCall, No. CIV.A. 1:09-1348-MBS-SVH, 2010 WL 3824708, at *15 (D.S.C. 2010) (unpublished opinion) (finding a lengthy joke involving a lawyer and a preacher harmless), report and recommendation adopted No. CIV.A. 1:09-1348-MBS, 2010 WL 3824643 (D.S.C. 2010); People v. Warren, No. G050393, 2014 WL 5144761, at *2 (Cal. Ct. App. 2014) (unpublished opinion) (“ ‘And so ladies and gentlemen, what I’m reminded of when I hear [defense counsel’s] closing argument is an old lawyer joke….You know, if the facts aren’t on your side, well, then you argue the law. If the law isn’t on your side, well, then you argue the facts. And if neither the facts nor the law are on your side, what do you do then? Well, you just argue.’ ”).
The court thus held that “We do not find this self-deprecating lawyer joke to be outside the wide latitude afforded attorneys to explain their case to the jury. This comment was not error.”
I might disagree with the court’s conclusion because I don’t think the prosecutor’s joke was self-deprecating. Instead, the prosecutor seemed to be deprecating the concept of lesser-included offenses, saying that they were the lawyers (ostensibly defense counsel) just adding and confusing things. Therefore, it’s pretty easy to see the jurors taking lesser-included offenses less seriously during deliberations.
-CM