Mimesis Law
20 October 2021

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.

But even prosecutors occasionally falter in ways that a court will address. David Fear is a good example. He recently had a conviction overturned by a Florida appeals court.

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.[1]

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.

[1] This sort of thing isn’t frowned upon in every state. In Georgia, for instance, there’s no rule against a prosecutor calling a black defendant a “thug.”

9 Comments on this post.

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  • JohnM
    22 February 2017 at 10:12 am - Reply

    He knows the rules. He knows the theoretical and actual consequences for breaking those rules.

    His actions clearly state that he has no fear of the actual consequences.

    The state marches on…

    Also, David Fear.

  • Ruthie
    22 February 2017 at 11:41 am - Reply

    Just out of curiosity, what is the appropriate “neutral” term for pedophile in FL–if one actually exists. I’m being serious, here–b/c “child molester” sounds even worse–and most juries don’t know what a “pederast” is.

    • Greg Prickett
      22 February 2017 at 12:04 pm - Reply

      Until convicted, the appropriate term is “defendant” or his name.

  • Anonymous
    22 February 2017 at 6:55 pm - Reply

    “ridiculing Appellant’s position with sarcastic remarks and comments” was a near line-crossing? You can’t be serious.

  • Anonymous
    22 February 2017 at 7:21 pm - Reply

    If this was so obviously improper why not refer the trial judge to the bar too?

    • Andrew Fleischman
      23 February 2017 at 11:41 am - Reply

      Not sure if you’re the same anonymous, but to answer both questions:

      1. Courts are funny and have their own rules. Some places say you can’t make fun of opposing counsel. In my home state, it would be fine, but if those are the rules, presumably the prosecutor knew that ahead of time.

      2. Judges who make bad decisions are typically punished through reversal, like in this case. Bar discipline is typically reserved for the malicious, not the incompetent.

  • Anonymous
    26 February 2017 at 4:34 pm - Reply

    If you read the decision, it’s long on conclusion and short on facts…what exactly the prosecutor did wrong and then citing the cases which show how each argument was so obviously wrong. If you are going to slam someone and refer them to the bar, you should lay it out in unmistakable detail. Compare the conclusory decision here to the long order castigating DOJ by in the Texas v US litigation.

    Again, if the prosecutor was so obviously out of line, the appellate court should have referred the judge to the bar too. If it was not obvious, then no bar referral for anyone.

    • Andrew Fleischman
      26 February 2017 at 7:12 pm - Reply

      Are you familiar with any cases where a judge was referred to the bar for not stopping an improper closing argument?

  • Anonymous
    27 February 2017 at 5:25 pm - Reply

    No…but exactly my point. The decision is so over the top on what was portrayed as obvious misconduct. If so, the decision proves too much. Guess the appellate judges were protecting their own and saw nothing hypocritical in referring the prosecutor alone.