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Prosecutor’s “Animosity” Toward Defense Leads Oregon Appeals Court to Vacate Convictions

by Mark Wilson

The Oregon Court of Appeals concluded that a prosecutor’s criticism of defense counsel during closing argument “crossed the boundary of permissible argument and prejudiced defendant’s right to a fair trial.”

Doug Brunnemer was tried on several Oregon domestic violence offenses. The State’s case was based largely on the testimony of Brunnemer’s wife. While cross-examining the victim, defense counsel highlighted inconsistencies in her testimony. Counsel questioned her about conflicts between her trial testimony and statement to police.

The trial court prohibited defense counsel from saying “supposedly” during cross-examination, finding that the word was argumentative. The court directed counsel to use “allegedly,” instead. The court said counsel could use both terms during closing statements.

Defense counsel again highlighted the inconsistencies in the victim’s testimony during closing argument. The lawyer also used the word “supposedly” multiple times and emphasized that Brunnemer had no obligation to present any evidence to dispute his wife’s version of events, noting that the burden was not his.

During the State’s rebuttal closing argument, the prosecutor criticized defense counsel, accusing her of “mocking” the victim and portraying her as a “moron,” “mistaken,” and “confused.” The prosecutor also said there was no evidence contradicting the victim’s claims. Defense counsel objected, arguing that the prosecutor improperly shifted the burden of persuasion to Brunnemer. The court overruled the objection.

While criticizing defense counsel for her use of “allegedly” and “supposedly,” the prosecutor said: “They’re here today, they’re not asking for justice, they’re asking for—.” Defense counsel then requested a mistrial, arguing that the prosecutor had shifted the burden of persuasion, “personally attacked” and mischaracterized the constitutional role of defense counsel, and inappropriately commented on Brunnemer’s right to remain silent. The court denied the motion, but it expressed concern about the prosecutor’s “justice” comment, saying it came “close to some lines of civility.”

No curative jury instruction was given with respect to the prosecutor’s “justice” comment or other statements objected to by defense counsel. The jury ultimately returned a verdict acquitting Brunnemer on one charge, failing to reach a verdict on two charges, and reaching a non-unanimous verdict on one of eight convictions it entered against him.

The Oregon Court of Appeals reversed his convictions. “Viewing the prosecutor’s statement that the defense was ‘not asking for justice’ within the context of the state’s entire rebuttal argument,” the Court concluded “that the prosecutor improperly urged the jury to find defendant guilty based, not exclusively on the strength of the state’s evidence, but on a desire to punish defense counsel for” her treatment of the victim at trial.

The Court noted that it had previously held that “when a prosecutor attempts to influence the jury by making ‘unwarranted personal attacks’ on defense counsel, that conduct is ‘not only unfair, but it impugns the integrity of the system as a whole’ because such conduct ‘dangerously overshadows what a defendant’s case is really about.’”

“When the state’s rebuttal culminated in the prosecutor’s statement that defense counsel was ‘not asking for justice,’ the prosecutor, whether inadvertently or not, invited the jury to find defendant guilty in part to punish defense counsel,” the Court determined. “That invitation created a risk that the jury would be motivated to find defendant guilty not because the state had proven every element of the charged offenses beyond a reasonable doubt, but based on animosity toward ‘defense attorneys’ who ‘mock’ domestic-violence victims who choose to testify against their abusers.” Accordingly, the Court of Appeals reversed Brunnemer’s convictions and remanded.

See: State v. Brunnemer, 287 Or. App. 182 (2017).  

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