A prosecutor’s “grossly improper” remarks during closing argument in a child abuse case, which were not corrected by the trial court, constituted deliberate prosecutorial misconduct and “poisoned the proceedings,” the Michigan Court of Appeals has ruled, remanding the case for a new trial.

In People v Spagnola (unpublished opinion, issued March 8, 2018), the defendant was charged with “violently shaking” his 11-week-old daughter and “banging her head on a hard surface.” The trial hinged on the expert witnesses’ interpretations of radiologic images of the child’s brain. Ultimately, the jury convicted the defendant of first-degree child abuse.

But the Court of Appeals vacated the defendant’s conviction in a 2-1 decision. According to the Court, the prosecutor’s statements during closing argument – including belittling defense counsel and defense witnesses, and implying the defense was totally fabricated – were “flagrant” violations of the court rules, case precedent and the rules of ethics.

“The trial court did nothing to mitigate the impact of the prosecutor’s improprieties, despite several objections” by defense counsel, the Court of Appeals wrote. “Because [the prosecutor’s] misconduct denied [the defendant] a fair trial, a new trial is required.”

Judge Colleen O’Brien dissented, saying the prosecutor’s statements during closing argument did not rise to the level of prosecutorial misconduct and, therefore, the defendant was not denied a fair trial.

Child Abuse Charges

During the defendant’s trial on child abuse charges, the proofs focused on the radiologic images of the child’s brain. According to the evidence, nobody had ever witnessed the defendant abusing his daughter. The experts on both sides acknowledged that because the child did not show any signs of abuse (i.e., bruising or fractures), their opinions about what happened to the child centered on the radiologic images.

The prosecution’s two expert witnesses were both pediatricians. They testified the radiologic images showed that the child was intentionally abused. However, the defense presented testimony from a neuro-radiologist, who said the child’s condition was chronic rather than acute and was likely related to her difficult birth rather than intentional abuse.

During closing argument, defense counsel emphasized that: 1) the prosecution’s two pediatric experts provided conflicting opinions of the radiologic images; 2) the radiology reports contradicted the prosecution experts’ conclusions; and 3) only the defense had presented the opinion of an actual radiologist.

In rebuttal to defense counsel’s closing statement, the prosecutor attacked the integrity of defense counsel with various inflammatory statements and proclaimed, with no evidentiary support, that the prosecution’s radiology expert would have testified but for being on vacation in Paris.

Defense counsel objected to the prosecutor’s comments. The trial court, however, did not give a curative instruction. The jury then convicted the defendant of first-degree child abuse under MCL 750.136b(2).

‘Flagrant’ Misconduct

On appeal, the defendant challenged the prosecutor’s emotionally charged statements to the jury, his personal attacks on defense counsel and his introduction of a fact unsupported by the evidence.

In its analysis, the Court of Appeals pointed out the prosecutor quoted the following song lyrics: “The statue stands in the shaded place. An angle [sic] girl with an upturned face. A name is written on a polished rock. A broken heart the world forgot.” The Court continued by noting the prosecutor told the jury: “I think about [the child], and I think about her growing up with her sister. I think about her asking questions: Why aren’t I the same? What happened? Who did this to me?” The answer, according to the prosecutor, was that “[The child] was betrayed by her father.”

According to the Court of Appeals, prosecutors are generally given “great latitude” during trial. In this case, the prosecutor made several statements that “crossed the line between proper and improper appeals to the jurors’ sympathy,” the Court observed. “The prosecutor’s recitation of music lyrics invoking the image of the grave of a murdered and forgotten child was improper. The prosecutor’s other naked appeals to sympathy were attempts to divert the jurors’ attention from the facts of the case and to inflame their passions. Standing alone, these statements would not demand a new trial. Even without an objection from the defense, the trial court instructed the jury that it ‘must not [allow] sympathy or prejudice [to] influence your decision.’”

Meanwhile, the prosecutor’s statements during closing argument “flagrantly” violated legal rules and professional norms, the Court of Appeals said, emphasizing that a prosecutor “should always avoid argument intended to inflame rather than enlighten.”

Here, the prosecutor began his closing argument rebuttal by disparaging defense counsel and the defense’s arguments, the Court of Appeals explained. “Because the prosecutor unleashed these improper comments during rebuttal, defense counsel had no opportunity to respond to this direct – and utterly baseless – attack on his integrity and that of the defense experts. … [T]aken in full context – including the prosecutor’s admonition that the jurors would be ‘stupid’ to believe what defense counsel had argued – the prosecutor improperly expressed a personal opinion of [the defendant’s] guilt and the character of his counsel.”

While the prosecutor repeatedly said that counsel had made up the defense, “[n]othing could have been farther from the truth,” the Court of Appeals wrote. “The defense presented the unobjected-to testimony of two well-qualified experts whose testimony was not challenged as irrational, unreasonable, or scientifically suspect.” The prosecutor “belittled defense counsel and the defense witnesses, implying that the testimony was part of some common defense scheme to hoodwink jurors,” the Court said. “There is nothing remotely fair in this argument.”

Although the defendant presented “cogent and compelling arguments,” the prosecutor countered these arguments with “prejudicial and inflammatory denigration of defense counsel and his witnesses,” and then introduced outside evidence that a radiologist would have supported the prosecution’s case but for a planned vacation to Paris, the Court of Appeals noted.

“We are unwilling to minimize the prosecutor’s transgression or to chalk it up to a moment of unfettered zeal,” the Court of Appeals announced. “In personally attacking counsel and the defense witnesses and introducing evidence outside the record the prosecutor did not properly respond to any argument made by defense counsel. … This flouted fundamental ethical precepts. Despite counsel’s objection, the trial court permitted the inference of favorable testimony to remain unsullied.”

Therefore, “we can reach no other conclusion but that defendant was denied a fair trial,” the Court of Appeals wrote. “We vacate [the defendant’s] conviction and sentence and remand for a new trial.”