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A Cobb County prosecutor’s closing argument that included displaying a birthday cake and singing “Happy Birthday” for a dead child did not stop a 5-2 majority of the state Supreme Court on Monday from upholding the felony murder convictions of the 8-year-old boy’s parents. Justice Harold D. Melton on Monday wrote for that majority that “while this Court frowns upon the prosecutor’s antics and finds them to be highly inappropriate, counsel’s decision to remain silent was reasonable, considering the fact that the prosecutor’s argument was so ‘preposterous’ and ‘over the top’ that it may have worked to the benefit of the defense even absent an objection.” In a dissent, Chief Justice Carol W. Hunstein blasted the majority opinion’s reasoning, as well as the prosecutor’s actions. “It is not enough to ‘frown on’ behavior that undermines the very foundation of the criminal proceedings,” wrote Hunstein. “We have to stop it. And the only effective means of stopping it is to punish this behavior in the strongest possible manner. The only thing that gets attention is reversal.” Melton wrote that there was evidence the defendants Joseph and Sonya Smith routinely disciplined their son, Josef, by beating him with glue sticks, belts and heated coat hangers, locking him in confined spaces for extended periods of time and tying his hands with a rope. There is evidence that on Oct. 8, 2003, Sonya and the Smiths’ eldest son, Mykel Booth, forced Josef into a wooden box, beating him about the head as they did so, and tied the box shut, according to the opinion. The opinion says that when Joseph later removed Josef from the box, the child was barely breathing. Emergency services personnel were called, and Josef later died at a hospital. According to the opinion, numerous medical experts testified that the cause of Josef’s death was either blunt force trauma or asphyxiation. According to lawyer Manubir S. “Manny” Arora, who represented Joseph Smith at the February 2007 trial, the defense was that Josef died from an infection. Arora said one possible source was eczema but the county medical examiner hadn’t preserved skin samples. Melton’s opinion recounted that, in her closing argument, the trial prosecutor—identified by lawyers in the case as Assistant District Attorney Eleanor A. Odom—dimmed the lights in the courtroom, brought out a cake with lit candles, and sang “Happy Birthday” to Josef. According to the opinion, Arora testified at the motion for new trial hearing in the case that he did not object to the “Happy Birthday” song during closing argument because he thought it so “over the top” that “it would turn jurors off” and he did not want to call any more attention to it by objecting. A jury found both Smiths guilty of various charges, including felony murder. Each received a life sentence. On appeal, the defendants made a host of arguments. Sonya Smith argued that trial judge James G. Bodiford should have declared a mistrial after Mykel Booth referred to the prior death of another child by noting the Smiths prayed that they had not “los[t] another son” when Josef was pulled unresponsive from a box. The court rejected that argument, with Melton writing that Bodiford’s instruction to the jurors that they could not consider the testimony “in any way, in any form, [or] in any fashion” was adequate. Joseph Smith argued that Arora had a conflict of interest because he was representing both defendants and his legal fees were being paid by the Smiths’ church in Tennessee. Melton said that both defendants actually had their own attorneys, who simply agreed to conduct a joint defense because neither Smith wanted to blame the other, and that there’s no evidence that the church exercised any influence over Arora’s judgment in representing Joseph. As for the use of a birthday cake and song during the prosecutor’s closing argument, Melton wrote that objections not made at the time of an improper argument are waived except during a death penalty case or when the judge has expressed an opinion as to what’s been proven or whether the defendant is guilty. Melton added that defense counsel’s failure to object at the time was reasonable, not ineffective assistance of counsel. Melton noted that the jury found Sonya and Joseph not guilty on several charges, including two charges of felony murder, one of the first degree cruelty to children charges, and a malice murder charge. “[W]e must remind all prosecutors in this State that it is not their job to pursue stunts and antics during their closing arguments that are designed merely to appeal to the prejudices of jurors, but ‘to see that justice is done and nothing more,’” he added. “[T]he trial court would have been well within its right to control the courtroom by putting an end to the display of the prosecutor, even absent an objection from defense counsel.” Hunstein, joined in dissent by Justice Robert Benham, wasn’t satisfied with that response. “What the majority fails to recognize,” she wrote, “is that trial judges have not only the right to control their courtrooms, they have the duty to do so.” She said the even outside the death penalty arena, in exceptional circumstances a lawyer’s failure to object at the time of the trial does not preclude review of the issue on appeal if the trial court’s error “seriously affected the fairness, integrity, and public reputation” of the proceedings. In this case, Hunstein wrote, “this prosecutor embarrassed every member of our profession with her behavior” and “did not concern herself with appellants’ right to a fair trial” but “cared only to win at any cost without regard to how unfair, how undignified, how disrespectful her actions were.” Hunstein said defense counsel “performed deficiently” by failing to object at the time, rejecting the idea that it was reasonable to hope that the closing argument tactic would backfire. “It is just as inappropriate for a jury to return a verdict based on prejudice or bias against the State as it is for the jury to return a verdict against the defense based on sympathy for the victim,” she wrote. Hunstein alluded to television coverage of the case, saying she was “giving the prosecutor the benefit of the doubt by concluding that her motive for pulling this stunt was simply to evoke sympathy for the victim in an unprofessional attempt to obtain guilty verdicts at any cost, as this motive is less offensive than the other possible motive raised by this case, i.e., that she was deliberately pandering to the television audience observing the proceedings on Court TV.” But she noted later that “[e]ven reversal will not work to alter the behavior of certain professionally-challenged prosecutors aiming for a career elsewhere, such as on television.” Arora, one of the defendants’ trial lawyers, said, “This was Nancy Grace television. It was almost like an audition.” As an example, he said that at one point Bodiford asked him to move because camera operators were complaining he was blocking a diagram. Arora disagreed with the use of the word “strategy” to describe his failure to object to the closing argument. “It’s just that nobody expected something that bizarre,” he said. “You’re not thinking strategy. You’re just thinking, ‘Good God, what am I supposed to do at this point?’” “There’s just no doubt in my mind that they didn’t kill that child,” Arora added. “Whether the discipline issues had gone too far—that’s pretty subjective.” Woodbine attorney Richard O. Allen said he represented Joseph Smith on appeal until the Smiths’ church convinced Joseph to fire him in favor of a Tennessee lawyer. “They should immediately file a motion to reconsider and just keep taking it up and up and up,” Allen said, “because Joseph Smith didn’t kill anyone.” The Tennessee lawyer, Samuel J. Harris of Cookeville, said his side was debating filing an appeal with the U.S. Supreme Court, saying the Smiths were innocent of the charges. “Here’s really what this opinion says: Prosecutors can pretty much do whatever they want in closing argument, because the system allows them to get away with it,” Harris said. “Their box theory was totally fabricated,” he added, referring to the prosecution’s case, saying no wood chips were found on Josef’s body. Snellville lawyer Edwin J. Wilson, who represented Sonya Smith on appeal, said in an e-mail that he would file a motion for reconsideration. He declined to comment further. Patrick H. Head, the Cobb County DA, said Odom wasn’t one to grandstand for television. “I have not seen her do that in the past,” he said, “so there’s no reason that she would do that in this case.” He noted that the majority didn’t see the case the way Hunstein did, although he acknowledged that even the majority thought Odom’s actions were “a little over the top.” “I do agree that closing arguments need to be [made] using the evidence that has been introduced and not using some other props,” Head added. Odom said Monday morning that she had yet to read the opinion. An attempt to reach her later in the day was unsuccessful. The case was Smith v. State, No. S10A1281. Staff Reporter Alyson M. Palmer can be reached at [email protected]

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