Free Michael Clark - an innocent man serving LWOP
BACKGROUND

Quite often in wrongful conviction cases prosecutors resort to misconduct in order to obtain a conviction. This may be in the form of with holding exculpatory evidence that would have shown the defendant was innocent of the crime he/she was charged with; lying about evidence or evidence not submitted at trial during closing arguments; stating their own personal opinions and beliefs during opening and closing arguments; allowing witnesses to testify in a way that they and the witnesses know is not truthful, etc.

Prosecutors often forget it is NOT their function (1) to get a conviction at all costs, but to remember it's their function (2) to present the facts to the best of their ability to ensure justice is obtained. Sadly some prosecutors, particularly those involved in wrongful conviction cases forget the second function and only concentrate on the first function.


PROSECUTION'S OPENING ARGUMENT

  • Walter Stackhouse was the prosecution’s key witness in this entirely circumstantial case. Stackhouse was the only person who testified that Michael Clark, allegedly, made admissions about the homicide. The prosecution deemed Stackhouse’s testimony so critical to its case that it began its opening statement with Mike’s alleged statement to Stackhouse that “they can’t charge me because they’ll never find the gun.” The prosecutor referenced that alleged admission twice more in opening statement. Prosecutors are not allowed to make alleged statements during opening arguments but the prosecutor in Mike's case made three alleged statements during opening arguments. 


PROSECUTION'S CLOSING ARGUMENT

  • The prosecutor’s foray into the cloak of state authority was particularly problematic; moments after the prosecutor told the jurors “I know from 1-2 feet away [Clark] was able to hit Marty Grisham four times.” This misconduct was not harmless error; rather, it continued the prosecutor’s string of improper remarks, in rebuttal, conveying a personal belief in Clark’s guilt and the State’s imprimatur thereon. 
  • Later in the prosecutor's rebuttal  addressing Clark’s November 1994 interrogation, the prosecutor opined:"Everything he said was untrue. Everything he said was misleading, everything said was designed to steer the police away from his gun, the gun that he purchased. And they told him, we want to clear you or we want to exclude you and we want to give you an opportunity to explain it. Clark wasn’t telling the truth about when he had it, where he got it and what he did with it, his story was ridiculous, but that’s the same old Mike." Prosecutors are prohibited from communicating a personal belief in a witness’s veracity to the jury.  Because credibility determinations are solely the jury’s province, opining on witness veracity is particularly inappropriate. Counsel may not “throw onto the scales of credibility the weight of his own personal opinion.” Here, opining on Clark’s veracity was exactly what the prosecutor did. And the prejudice to Clark was substantial in a case hinging on circumstantial evidence and the jury’s perception of his consistent denials that he had anything to do with Grisham’s murder. The comments therefore constituted plain error.  
  • The prosecutor also appealed to jurors’ passions: The most poignant moment is informant Stackhouse saying despite what this means to him and despite the lack of benefit, despite the harm coming here to testify is going to do to him, if someone did this to my family [Prosecutor]: If someone did this to my family, this is his – these are Stackhouse's words not mine, If someone did this to my family, I would want someone to step forward. A prosecutor may not use arguments or introduce evidence intended to inflame the passions of the jury.  It is further improper to appeal to jurors to consider the wishes of the community.
  •  Later, concluding rebuttal, the prosecutor commended the “hard work” the jurors were about to do: "I wish that there was a way to just put it all in a hopper and press a button and get an answer, but it’s never easy, it’s never pretty, it’s never beautiful, it’s never majestic, it is hard work. It is hard work. Be proud of the work you are going to do in this case, as hard as it is, as heartbreaking as it may be to hear this evidence and to do what you have to do, be proud, do justice and make sure that the right thing happens. Thank you." Prosecutors may not pressure jurors by suggesting that guilty verdicts are necessary to do justice for a sympathetic victim. A prosecutor’s comment that the jury’s role is to “do justice” is flagrantly improper. There is no question what the prosecutor meant when he congratulated the jurors’ upcoming “hard work” and urged them to “do justice and make sure that the right thing happens.” The prosecutor conveyed that the jury’s job was to convict Clark and do justice for a sympathetic victim. 


CONCLUSION

  • Prosecutor knowingly made alleged statements during opening arguments when he knew were improper and misconduct.
  • In rebuttal, prosecutor conveyed his personal belief in Mike’s guilt which was improper and misconduct. 
  • Later in rebuttal the prosecutor again stated his own personal opinion as to Mike's guilt and ended it by same "same old Mike." This was improper, harmful and misconduct.
  • Later in the concluding of rebuttal argument prosecutor conveyed to the jury that it was their job to convict Mike and do justice for a sympathetic victim (Marty Grisham). This was improper and misconduct.



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