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Prosecutorial Misconduct
(People v. Hill (1998) 17 Cal.4th 800)

Prosecutorial Misconduct Derisive Comments and Actions Towards Defense Counsel
(People v. Hill (1998) 17 Cal.4th 800) 

d. Derisive Comments and Actions Towards Defense Counsel

[14a] Defendant next claims Prosecutor Morton committed misconduct throughout the trial by engaging in derisive action or making derogatory comments directed at Defense Counsel Blum. [15] A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. (People v. Wash (1993) 6 Cal.4th 215, 265 [24 Cal.Rptr.2d 421, 861 P.2d 1107]; People v. Thompson (1988) 45 Cal.3d 86, 112 [246 Cal.Rptr. 245, 753 P.2d 37]; People v. Perry (1972) 7 Cal.3d 756, 789-790 [103 Cal.Rptr. 161, 499 P.2d 129], disapproved on other grounds, Green, supra, 27 Cal.3d at pp. 28-34; People v. Bain, supra, 5 Cal.3d at pp. 847-848.) "An attack on the defendant's attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable." (5 Witkin & Epstein, supra, Trial, § 2914, p. 3570.)

The American Bar Association Project on Standards for Criminal Justice, Standards Relating to The Prosecution Function and The Defense Function (Approved Draft 1971) (hereafter ABA Standards), sets forth the standard of courtroom behavior required for a prosecutor: "5.2 Courtroom decorum. [¶] (a) The prosecutor should support the authority of the court and the dignity of the trial courtroom by strict adherence to the rules of decorum and by manifesting an attitude of professional respect toward the judge, opposing counsel, witnesses, defendants, jurors and others in the courtroom. [¶] (b) When court is in session the prosecutor should address the court, not opposing counsel, on all matters relating to the case. [¶] (c) It is unprofessional conduct for a prosecutor to engage in behavior or tactics purposefully calculated to irritate or annoy the court or opposing counsel. [¶] (d) A prosecutor should comply promptly with all orders and directives of the court, but he has a duty to have the record reflect adverse rulings or judicial conduct which he considers prejudicial. He has a right to make respectful [17 Cal.4th 833] requests for reconsideration of adverse rulings." Commentary to this section further states: "The gravity of the human interests at stake in a criminal trial demands that the proceeding be conducted in an orderly and dignified manner.... [¶] Rudeness and intemperance have no place in any court, especially in the relations between its professional members, the judge and lawyers." (ABA Standards, supra, com. to std. 5.2, pp. 113-114; see generally, People v. Kelley (1977) 75 Cal.App.3d 672, 688 [142 Cal.Rptr. 457] [quoting ABA standards].) fn. 4

[14b] The record in this case reveals a rancorous trial, with episodes in which one side (most often the prosecutor) constantly interrupted the other side during the examination of witnesses or closing argument by objections that were marginal at best. The trial was also marked by an apparent personality conflict between Prosecutor Morton and Defense Counsel Blum, with the trial court several times asking both sides to tone down the bickering and focus on the trial at hand. fn. 5 Although some exchanges identified by defendant are too trivial to mention, the flavor of the trial may be gleaned from the fact that when Blum asked Morton to stipulate that the length of the jury box was 20 feet, she retorted, "I certainly will not" and announced in front of the jury that Blum was "unprofessional" and "contemptuous" for even asking her to stipulate.

Another unfortunate episode involved the questioning of Charles Caudell, a fingerprint expert. During cross-examination, Blum asked Caudell whether it was possible to transfer fingerprints from one place to another, whether it had been conclusively proven that no two persons could have the same fingerprints, and whether Caudell had ever made a mistake identifying prints. Morton apparently took extreme umbrage at such questions and insisted that defendant's fingerprints be re-rolled right then, while the jury was watching. Morton insisted: "I want the jury to see it.... and I want counsel to put his initials on that roll, so nobody can say they substituted it." When Caudell volunteered that he once made a mistake in training, Morton was unappeased: "No. This is what I want. And I want counsel to sign it." Blum asked the trial court: "Can we have a conference if the district attorney is going to say what she wants?" Morton exclaimed flatly: "I am entitled." [17 Cal.4th 834] This entire exchange occurred in front of the jury. The matter was eventually defused and resolved in chambers, but not before Morton accused Blum of having "unabashedly ... defamed" witness Caudell.

Other disturbing incidents include Morton's audibly laughing in the middle of Blum's examination of both victim Ronald Johnson and witness Robbie Ventura, and getting out of her chair during Blum's examination of witnesses, standing in his line of sight, staring at him and making faces at him. Morton's tactics were petty and childish, heightening the acrimonious atmosphere in the courtroom and threatening the ability of defendant to receive a fair trial. It takes no citation to authority for us to conclude such juvenile courtroom behavior by a public prosecutor demeans the office, distracts the jury, prejudices the defense, and demands censure.

People v. Hill (1998) 17 Cal.4th 800 , 72 Cal.Rptr.2d 656; 952 P.2d 673
 

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