Readers will now be shown the lengths to which Judge Kimbler's "team member" has gone to conceal from the public, quoting the Ninth District Court of Appeals, "THE EGREGIOUS AND WIDESPREAD MISCONDUCT" OF MEDINA ASS. PROSECUTORS SCOTT SLEAZEBURY AND MUSTAFAH RAZAVI.
Displayed below, for the reader's consideration, is the following post taken from Judge Kimbler's blog:
The reader will note that the "team member" attempts to conceal the DELIBERATE MISCONDUCT AT TRIAL BY SCOTT SLEAZEBURY AND MUSTAFAH RAZAVI, DESCRIBING THEIR DELIBERATE MISCONDUCT AS "ERRORS."
IT'S TIME TO REVIEW WHAT THE NINTH DISTRICT COURT OF APPEALS HAD TO SAY ABOUT WHAT JUDGE KIMBLER'S "TEAM MEMBER" DESCRIBED AS SIMPLE "ERRORS" :
ASSIGNMENT OF ERROR XIII
DESPITE PREVIOUS WARNINGS FROM THIS APPELLATE COURT IN
HARTMAN I, THE STATE COMMITTED REVERSIBLE ERROR BYREPEATED ACTS OF PROSECUTORIAL MISCONDUCT THAT PERVADED THE ENTIRE TRIAL AND AGAIN DENIED HARTMAN A FAIR TRIAL, BY ASSERTING FACTS THE EVIDENCE CONTRADICTED, DENIGRATING HARTMAN AND HIS DEFENSE COUNSEL, AND
ASSERTING PERSONAL OPINIONS.
{¶15} Mr. Hartman asserts in his thirteenth assignment of error that he was denied his
constitutionally protected right to a fair trial because of misconduct by the prosecutor. Viewing the entirety of the prosecutors’ closing argument in the context of the entire trial, we agree.
{¶16} We note that in the prior appeal, Mr. Hartman alleged prosecutorial misconduct during his first trial. See Hartman, 2012-Ohio-745, at 28. We stated that we had “addressed similar issues in other recent opinions and are confident that the issues will not be repeat should Mr. Hartman be retried.” Id.
{¶17} “When a
defendant alleges that remarks by the prosecutor during closing argument denied
him a fair trial, we consider ‘whether the remarks were improper and, if so, whether
they prejudicially affected substantial rights of the defendant.’” State v.
Cleland, 9th Dist. Medina No. 09CA0070-M, 2011-Ohio-6786, ¶ 32,
quoting State v. Smith, 14 Ohio St.3d 13, 14 (1984), citing United
States v. Dorr, 636 F.2d 117 (5th Cir.1981).
Although the State is generally accorded a certain degree of latitude during
closing argument, “[t]he prosecutor is a servant of the law whose interest in a
prosecution is not merely to emerge victorious but to see that justice shall be
done. It is a prosecutor's duty in closing arguments to avoid efforts to obtain a
conviction by going beyond the evidence which is before the jury.”
{¶18} The Ohio Supreme
Court in Smith concluded that reversible error occurred in a situation
in which, during closing argument, “the assistant prosecutor referred to
defense evidence as ‘lies,’ ‘garbage,’ ‘garbage lies,’ ‘[a] smoke screen,’ and ‘a
well conceived and well rehearsed lie[,]’” and additionally “intimated that
defense counsel had suborned perjury by manufacturing, conceiving and
fashioning lies to be presented in court.” Smith, 14 Ohio St.3d at 14.
The Supreme Court noted that there was no evidence in the record to support the
accusations. Id.
{¶19}
Unfortunately, we
face a similar situation in the instant matter. While there are several improper
(and unobjected to) comments from the State during its initial closing argument
(asserting that the testimony of a defense witness was disingenuous and not
credible and that defense theories were preposterous and essentially garbage),
the improper comments and inferences continued to mount during the State’s
rebuttal.
The record reflects that the State’s rebuttal is rife with argument
that is disrespectful and disparaging of defense counsel, defense
witnesses, and defense theories of the
case. The tone is clearly inflammatory. The State repeatedly impugns the
integrity of defense counsel, accusing her of (1) mischaracterizing the evidence,
(2) telling the jury “everything about the evidence that it was not[,]” and (3)
seeking to intentionally mislead the jury. Additionally, the State accuses
defense witnesses and defense counsel of lying. For example, when responding to
the testimony that defense witnesses offered about the condition of the
Leightons’ door when they would visit, the State stated that “[p]eople don’t
leave their doors open, as much they want to put on ridiculous testimony and
lies * * * to say that door was wide open every time I entered their premises,
absolutely, definitely.” The State went on to assert that, if that were true,
the defense witness who photographed much of the scene would have taken a
picture of the door being open, and because there was no picture, scene would
have taken a picture of the door being open, and because there was no picture, “that’s
how you know that’s a lie.” Further, when discussing Deputy Clinage’s
recollection of the unrecorded statement that Mr. Hartman made to police, the
State asserted that because a certain fact was not in the statement, that the
fact was “something they made up later * * *.” The State went on to comment, “And
the difference in the State’s – what the State presented you and what the
defense presented you is our evidence actually makes sense and it fits, every
single thing, including his statement, even though, even though he lied in his
statement and tried to say he was going groundhog hunting.” Ultimately, it was
the State’s repeated comments about lies and mischaracterization of the
evidence that led defense counsel to finally object during a sidebar. Defense
counsel correctly pointed out that “it is improper to say a witness lied and to
say an attorney is lying or misleading.” Nonetheless, the trial court, while
expressing concern that the prosecutor was possibly making references to matters
that were not in evidence, overruled the objection and the assistant prosecutor’s
inappropriate comments continued. The State went on to accuse Mrs. Hartman
of attempting to mislead the jury and stated that “she is not being honest
about what happened that day[,]” and that she “tried to make you believe this time
frame that wasn’t true[.]” The State again asserted that Mr. Hartman’s
statement to Deputy Clinage that he was going over the Leighton’s to go
groundhog hunting was “not true[]” essentially because Mr. Leighton, the State’s
witness, did not testify to that.
{¶20} Thus, the State
repeatedly argued that witnesses were lying, that defense theories were
ridiculous, and that defense counsel was mischaracterizing the evidence. [The] conflict
in the evidence is to be resolved by the jury, not the prosecutor’s assessment
that the defense witnesses must be lying because their version of events is ridiculous
in the eyes of the State. We note that even the State’s concluding remarks are
problematic: the State summarized stating that “[n]othing, nothing they have
presented to you makes any sense whatsoever with regard to innocence. Nothing.
We have presented you * * * nothing but evidence of guilt in this case.” It is
well established that “prosecutors may not invade the realm of the jury by, for
example, stating their personal beliefs regarding guilt and credibility, or
alluding to matters outside the record.” (Internal quotations and citations
omitted.) Akron v. McGuire, 9th
Dist.Summit No. 24638, 2009–Ohio–4661, 13.
{¶22} Additionally, we cannot say that the case against Mr. Hartman was overwhelming
{¶24}Given the
conflicting evidence and theories of the case, we cannot say that the State’s
improper comments with respect to defense counsel and the credibility of
witnesses did not impact the outcome of this trial.
{¶25} In light of the
foregoing, we conclude that the prosecutor’s improper remarks prejudicially
affected the substantial rights of Mr. Hartman.
{¶36}It was not until
closing argument in general, and the State’s rebuttal in particular, that the
wheels came off for the prosecution. The rebuttal prosecutor impugned the
motives of defense counsel, stated personal opinions about facts in the case,
and repeatedly called defense witnesses liars. [T]he [prosecutors’] statements
went so far beyond the bounds of professional conduct in a courtroom, that I
find it impossible to say that in a close case such as this one, a jury would
have found the defendant guilty even without the improper comments
{¶37} The unfortunate
result is that this case will be remanded once again to the trial court where
it is likely that yet more resources will be expended for yet another retrial.
Whether that in fact happens is beyond our purview. However, where this Court
attempted in its last opinion to gently suggest that the State not repeat its
indiscretions, I will say it bluntly: the prosecuting attorney(s) are much too
personally invested in this case to be objective. Hopefully, reassignments for
any retrial will be considered.
So, as the reader can see, this case has been reversed on the grounds of "egregious and widespread" DELIBERATE PROSECUTORIAL MISCONDUCT, rather than innocuous "errors" the Judge Kimbler's "team member" tries to suggest.
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