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Another Death Penalty Division on the Sixth:

Today the U.S. Court of Appeals for the Sixth Circuit affirmed a district court's denial of a capital defendants petition for post-conviction relief under Section 2254 in Slagle v. Bagley. As we've come to expect on the Sixth, the panel was divided. Judge John Rogers wrote the majority opinion, joined by Chief Judge Danny Boggs. Judge Karen Moore dissented.

Defendant Billy Slagle was convicted of the aggravated murder of Mari Anne Pope.

Slagle broke into his neighbor Pope's house on August 13, 1987, because he wanted to steal something for the following day's drinking. Pope was babysitting two neighborhood children. Ultimately, Slagle went into Pope's bedroom and, after she woke up, stabbed her seventeen times in her chest with her sewing scissors. The two children escaped, called for help, and identified Slagle. The police found Slagle at the scene holding the bloody scissors, and Slagle later described his actions that night indetail. Although Slagle admitted at trial that he killed Pope, he argued that, due to his voluntary intoxication from alcohol and marijuana, he did not have the requisite intent for aggravated murder. The jury, nevertheless, sentenced him to death for aggravated murder.
The primary issue in the case was whether Billy Slagle's death sentence should be overturned due to prosecutorial misconduct. In particular, Slagle argued, the prosecutor's repeated improper statements prevented him from receiving a fair trial. According to the majority opinion, the issue was not whether the prosecutor made improper statements, but whether the statements "so infected the trial with unfairness as to make the resulting conviction a denial of due process." A prosecutor's improper actions should not void an otherwise valid verdict if the trial was fair despite the prosecutor's misconduct. This is particularly so where the evidence of the defendant's guilt is sufficiently strong that the prosecutor's actions are unlikely to have affected the outcome. Judge Moore, on the other hand, thought the prosecutor's improper statements were sufficiently pervasive to render the trial fundamentally unfair, despite the strength of the evidence against Slagle.

alkali (mail) (www):
A prosecutor's improper actions should not void an otherwise valid verdict if the trial was fair despite the prosecutor's misconduct. This is particularly so where the evidence of the defendant's guilt is sufficiently strong that the prosecutor's actions are unlikely to have affected the outcome. Judge Moore, on the other hand, thought the prosecutor's improper statements were sufficiently pervasive to render the trial fundamentally unfair, despite the strength of the evidence against Slagle.

I don't think that analysis is relevant here, for two reasons.

First, Slagle wasn't challenging whether he killed the victim in the guilt phase of the trial, he was challenging whether he had the intent to commit aggravated murder (he was drunk and high at the time) as opposed to some lesser included offense. The prosecutor's improper statements regarding Slagle's mental state arguably could have rendered the trial unfair because the trial was about that precise issue. (In a case where a prosecutor makes such statements where the defendant's defense is mistaken ID, it seems to me much less likely that the jury would take those comments too seriously.)

Second, to the extent that the prosecutor made improper comments during the penalty phase of the trial, the fact that we're really sure the defendant is guilty is irrelevant. We wouldn't be having a penalty phase if we weren't really sure the defendant were guilty.

Just to clarify, here is the dissent's summary of the improper comments at issue:

The trial transcript is rich with evidence that the prosecutor consistently pushed the envelope throughout Slagle's trial, and repeatedly overreached the bounds of proper prosecutorial conduct when questioning witnesses and presenting closing arguments. The improper prosecutorial comments included attacks on Slagle's character and denigrations of Slagle's attorneys and witnesses. In addition, the prosecutor made assertions of facts outside the trial record and vouched for prosecution witnesses. The pervasiveness of these improper prosecutorial statements — both in number and in subject matter — renders them worth repeating. I concur with the majority that it was improper for the prosecutor to:

(1) state during closing arguments that Slagle had the nerve to tell the jury that he prayed;

(2) insinuate that Slagle took the scissors from the scene so that he could use them in his next crime;

(3) state that Slagle "and his kind . . . represent some of the greatest threats against community and civilization as we know it;"

(4) impugn Slagle's counsel by suggesting that Slagle "was keyed in not to remember;"

(5) impugn Slagle's expert witness Dr. Bertschinger, who testified about the effects of intoxication, by characterizing Bertschinger's testimony as "liberal quack theories . . . of how you should excuse a person's behavior;"

(6) impugn Slagle's lay witness Mike Davis by asserting that he was high when he testified, and that he had "crawled out of a hole;"

(7) state that Slagle's expert witnesses were "trying to promote a bit of sympathy for Slagle;"

(8) assert "Policemen don't scratch. Isn't that a fact?";

(9) state that the coroner had told the prosecution out of court that "the body doesn't lie;"

(10) insinuate that Slagle would have harmed the children sleeping upstairs at the time of the killing by stating that "[I]t's a damn good thing the kids didn't wake up. God forbid.";

(11) again insinuate that Slagle would have harmed the children by stating "It is a good thing [Slagle] didn't know that Howard [Bloxham] could identify him;"

(12) vouch for the police work in this case during closing argument by stating, "I put my money on the homicide detectives;"

(13) vouch for the police work by stating, "I do very uch mstand behind the police work;"

(14) vouch for the police work by stating, "I put our trust in Patrolmen Chappelle and Finchum and Guido;"

(15) vouch for a prosecution witness by stating, "Howard Bloxham is not going to come in here and tell you something that is not true."


(Citations to appendix omitted.)
8.9.2006 10:31pm