It is a rare event when an appellate court overturns a murder conviction based upon improper prosecutorial summation. That is in fact what occurred in the recent decision of the Connecticut Appellate Court in State v. Santiago.
Citing a litany of errors including disregarding court ordered limitations on evidence, appealing to juror emotions and sympathies, personalizing opinions about the defendant's guilt, and vouching for witness' credibility, among others, the Court blasted prosecutor, Terrance D. Mariani Jr., senior assistant state's attorney for the Waterbury Judicial District. What probably pushed the case over the edge was the prior appellate history of the same prosecutor engaging in the same improper arguments in other cases.
A brief survey of the Connecticut Law Journal on a weekly basis discloses published opinions by our appellate courts continuously dealing with issues of improper prosecutorial final argument. All too frequently our courts find improper comments or argument resulting in harmless error.
This is a problem that needs correction. Summation is a critical stage of criminal proceedings and can be crucial to swinging a case one way or the other. It is not acceptable that on too many occasions prosecutors step over the ethics line in the zealous advocacy to convict.
Are prosecutors required to read the appellate case decisions released each week? If so, it is hard to believe that such improper arguments would continue to occur. Are there training seminars regarding the appropriate limits of summation? If so, the message is not getting through.
In some ways, the appellate courts are also to blame. Time after time, they have found harmless error in cases of clear improper conduct. Over the years our appellate courts have changed the terminology from what was previously categorized as "prosecutorial misconduct" to what is now termed "prosecutorial impropriety." Maybe it's time to delineate the kinds of behavior that amount to actual misconduct. Categorizing everything as an "impropriety" trivializes serious misconduct.
What's to prevent a prosecutor from taking a calculated risk in crossing the line of acceptable conduct when our appellate courts on a regular basis give a wink and a nod to this kind of improper behavior? Maybe it's time for grievances to be filed where certain kinds of misconduct, like that detailed in the Santiago case is documented.
Finally, the criminal defense bar is not without responsibility. All too often the criminal defense lawyers fail to object to blatantly improper prosecutorial final argument. While a failure to object is not fatal to appellate review it certainly is a factor the court considers in looking at the harmfulness of the error.
Santiago should be a wake-up call to all of us that this critical stage of a criminal jury trial must be fixed. Justice and fairness demand it.•