Court rejects 2005 finding

Prosecutor's statements found to be improper

June 14, 2008|By Gadi Dechter | Gadi Dechter,Sun reporter

When a shooting victim testified that the Park Heights man charged with the crime was not his assailant, the prosecutor successfully argued to a jury that the victim was lying - that he was obeying "the law of the streets" in Baltimore, "the city that bleeds." Kevin R. Lee was convicted and sentenced to 30 years behind bars.

Maryland's highest court said yesterday that the prosecutor went too far in invoking Baltimore's notorious "stop snitching" culture, and reversed Lee's 2005 conviction.

The ruling could have a chilling effect on city prosecutors, who have long complained about witness intimidation and hostility to the justice system that have become common in crime-ridden Baltimore neighborhoods, said University of Baltimore law professor Lynn McLain.

Joseph Sviatko, a spokesman with the state's attorney's office, said prosecutors "will review the original case with an eye toward retrying" it. The decision has not yet been made, he said.

Attorneys enjoy wide latitude in their opening and closing arguments. But in its opinion, the Court of Appeals found that Circuit Judge John M. Glynn should have sustained repeated objections by Lee's court-appointed attorney, Larry Polen. The defense lawyer said closing remarks by Assistant State's Attorney Diana Smith were inflaming the jury.

Appeals Judge Lynne A. Battaglia also wrote in her opinion that Smith inappropriately urged the jury to convict Lee as a way of cleaning up Baltimore's streets, and to teach Lee a lesson "not to follow the laws of the streets of Baltimore," but to follow state law.

"We ... hold that the combination of all of these comments exceeded the permissible scope of closing arguments and that trial judge did err in permitting the prosecutor to make those comments," Battaglia wrote.

In a separate concurrence, Judge Glenn T. Harrell Jr., joined by another judge, disagreed with the majority opinion that Smith's invocation of the "law of the streets" was improper, finding instead that it is a "permissible rhetorical flourish." But those judges agreed with the majority that the conviction should be reversed because the prosecutor essentially asked the jury to place themselves in the victim's shoes - a prohibited argument known as the "Golden Rule."

Glynn said he was barred from discussing the opinion because the case has been sent back to Baltimore Circuit Court for possible retrial. Prosecutors also declined to comment on the ruling, saying they had not reviewed it.

McLain, the UB law professor, said the court's ruling clarified a "gray area" in the law regarding permissible speech by prosecutors in their closing arguments. Given the widespread problem of uncooperative witnesses in Baltimore, McLain said "one can understand their temptation" to try to explain away reluctant witnesses in that manner.

"Witness reluctance is more the rule than the exception around here," Glynn said, emphasizing he was not speaking about this particular case. "I'm not sure it could get any worse."

Gloria Luckett, a witness assistant coordinator with the state's attorney's office, said her office relocates about 100 witnesses every year who are afraid of retribution. "It's an epidemic," Luckett said, "and the numbers are growing."

But in closing arguments, McLain said, prosecutors might not introduce claims of the sort that Smith made - that the victim was lying on the stand to protect his friend out of allegiance to Baltimore's "law of the streets" - because it might give a jury the impression that the prosecutor is aware of evidence that was not presented in trial. And that is prohibited.

Yesterday's ruling "further says prosecutors have to keep one hand tied behind their backs," McLain said. "Prosecutors have to be even more careful."

Some criminal defense attorneys yesterday celebrated the court's ruling.

"It should have a chilling effect," said Margaret Mead, a Baltimore-area defense attorney. "When a prosecutor goes in and makes this kind of highly prejudicial, inflammatory argument about society as a whole, that puts a sense of obligation on the part of a juror to say, 'Oh my God, I better fix this,' instead of paying attention to the rules of evidence and exactly what the information was within the trial. It's outrageous."

But officials with the Maryland attorney general's office, which argued the state's case before the Court of Appeals, found some comfort in the seven-judge panel's ruling.

"I think you can read this opinion [to] suggest that comments regarding the difficulty of witness cooperation may be permissible in certain circumstances," said Chief of Criminal Appeals Katherine G. Graeff. While the majority of the court found the phrase "law of the streets" was ill-defined and not common knowledge, "phrased differently, that type of argument might be found to be permissible," she said.

McLain said it appeared that the Court of Appeals took particular exception to Smith's closing remarks because of the paucity of evidence in the state's case against Lee.

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