At Long Last, Prosecutors Have Something to Fear
February 22, 2017 (Fault Lines) — Good prosecutors are guided by their conscience. And bad ones are guided by their pride, ambition, and the slight chance of professional consequences if they stray outside the lines. Like a bowling ball at a child’s birthday party, a misguided prosecutor is more apt to be bumped back into the lane then left rolling in the gutter.
Fear had the quintessential “bad guy” defendant, the sort of person who might be played by Phillip Seymour Hoffman in a Law & Order episode. The defendant was accused of repeatedly molesting a five-year-old girl and forcing her to watch inappropriate animated movies. Ten years later, he was accused of groping the victim while they stayed at a motel, an allegation that led the victim to tell her mother that she had been molested before.
This is the sort of defendant that a jury would happily convict. Twice on Sundays. But Fear felt the need to push the envelope. In Florida, prosecutors aren’t typically allowed to call the defendant inflammatory names. But Fear called the defendant a pedophile seven times. Florida prosecutors aren’t supposed to ask for “justice” for the victims of crimes, but Fear made it the center piece of his closing argument, arguing that the victim, like the defendant, had a right to “equal access” to justice.
And the big one? Prosecutors aren’t supposed to lie to juries. But Fear told the jury that the defendant had confessed to several sexual incidents with the victim. He never did, though he did at one point claim that the victim had been sexually precocious and had “a thing” for his “genitalia.”
The Court also alluded to several other “near” line crossings by Fear, including:
(i) repeatedly calling Appellant a liar; (ii) making nationalistic appeals to what sexual information the people of the United States do not want five year olds to have; (iii) ridiculing Appellant’s position with sarcastic remarks and comments; (iv) and stating that Appellant violated one of the most sacred duties of our society by his conduct.
Taken together, this series of impermissible arguments was enough to give the defendant a new trial, which the Court wasn’t altogether stoked about.
Appellant’s retrial is not just a “do over.” The alleged victim, a child, will once again have to tell her story of familial sexual molestation to a judge and a second jury, while Appellant will once again be publicly accused and tried for sexually molesting a five-year-old. All of the witnesses’ normal schedules will be interrupted as they stand by to testify and attend court. Other parties’ trials will be delayed because this case must be tried twice. Confidence in our judicial system suffers when prosecutors are permitted to utilize clearly inappropriate closing arguments to convict. Winning at all costs is too high a price to be paid by too many.
Of course, all this impropriety didn’t just fall into the lap of the prosecutor. Though it’s not often remarked upon, it’s rare to find a case where a prosecutor acted unethically without also finding a defense attorney who was asleep at the wheel (and vice versa). And here, defense counsel allowed the prosecutor to repeatedly break the rules even as the trial judge did what trial judges typically do: respond to e-mails and tune out the proceedings until they hear the word “objection.”
But here’s the big takeaway from the opinion. While the appellate court inexplicably failed to name David Fear in the opinion, even though David Fear was named David Fear and David Fear’s actions in this trial should pop up early in David Fear’s Google results so that people know to stay clear of David Fear, it did recommend that he face professional discipline:
Accordingly, the action we take is to order the clerk of this court to provide the Florida Bar with a copy of this opinion, a copy of the trial transcript, and a letter identifying the attorney who prosecuted this case on behalf of the State at the trial court level, so that the Bar or on its referral, the Ninth Judicial Circuit’s Local Professionalism Panel, can decide how best to address this lawyer and the unfortunate conduct.
David Fear still works in Orlando at the Office of the State Attorney Ninth Judicial Circuit. And his office’s response to the opinion was not quite a full-throated renunciation:
We respect the opinion of the 5th DCA and we take these issues seriously. Mr. Fear’s emotions during a closing argument involving the sexual abuse of a child led to some inappropriate and overzealous statements. Mr. Fear has been a dedicated and passionate prosecutor. We are confident he has learned from this experience.
The fact of the matter is, David Fear isn’t likely to be seriously sanctioned for what happened. But the actual possibility of sanction, even when the defense attorney treats “objection” like a four-letter word, even when the judge is browsing for biscotti recipes, might lead to some actual trainings on what not to say.
While good prosecutors will continue to do the right thing for the right reason, bad ones need the right motivation. And fear is as good as any.