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Sixth Circuit: Prosecutor’s Improper Comments and Counsel’s Failure to Object Require New Trial

In 2007, Linda and Todd Stermer were headed for divorce after Todd found out she was having an affair. During an argument, the house caught fire, and Todd died from burns and being run over by Linda with her vehicle. She was charged with his murder. The prosecution’s argument at trial was that Linda had set the fire and then ensured Todd was dead by running him over after he exited the house engulfed in flames. The defense theory was that Todd either intentionally set the fire and accidentally burned himself or that it was all an accident.

Linda never testified at trial, but the prosecutor used her statements to investigators to discredit her defense and show that her statements were contradictory. Before giving those statements to the jury, the prosecutor called Linda a liar at least five times and then closed by calling her a “diabolical, scheming, manipulative liar and a murderer.” The prosecutor also bolstered the credibility of witnesses against Linda, saying things like, “she [the witness] certainly appears a very credible person” and saying the jailhouse informants who testified that Linda confessed to the murder to them in jail had “no intention to lie.”

Linda’s lawyer never objected to any of this. She was convicted of murder and sentenced to mandatory life in prison without parole. After her state appeals were exhausted and her state habeas petitions denied, she pursued habeas relief in federal court.

The U.S. District Court for the Eastern District of Michigan held an evidentiary hearing on Linda’s ineffective assistance of counsel (“IAC”) claims for failure to object to the prosecutor’s statements, failure to obtain an arson expert to rebut the State’s arson expert, and IAC of state appellate counsel for failing to challenge any of this on direct appeal. After hearing testimony from Linda, her previous lawyer and an arson expert obtained by federal habeas counsel, Judge Arthur Tarnow found that the state court had erroneously denied habeas relief and granted Linda’s federal habeas petition, ordering a new trial or her release.

The State appealed, arguing that the district court erred in holding an evidentiary hearing because the Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires the district court to give “deference” to the state court’s decision on the merits, which precluded the district court from considering any new evidence and only the evidence the state court had before it in denying Linda’s state claims (the state court never held an evidentiary hearing, and state habeas counsel never supplemented the record to support her claims). The Sixth Circuit agreed with the State but still found that Linda was entitled to relief, despite the AEDPA’s restrictions.

AEDPA Deference

In a lengthy discussion on deferenceto the state court’s decision under the
AEDPA, the Court recognized that if the state court decided Linda’s claims on the merits, the federal court could only grant relief if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” or was an “unreasonable determination of facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d).

Even without the expanded record by the evidentiary hearing held in the district court, the Sixth Circuit found that the state court unreasonably applied “clearly established federal law” by the U.S. Supreme Court regarding Linda’s prosecutorial misconduct and IAC claims relating to that error. In Darden v. Wainwright, 477 U.S. 168 (1986), the Supreme Court ruled that if a prosecutor’s comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process,” a new trial is required.

The Supreme Court has also ruled that improper prosecutorial bolstering of witnesses renders a trial unfair, in that it conveys an impression the prosecutor knows evidence not given to the jury, and the prosecutor’s opinion “carries with it the imprimatur of the government and may induce the jury.” United States v. Young, 470 U.S. 1 (1985).

Applying this “clearly established federal law” by the Supreme Court to Linda’s case, the Court found that the comments may have affected the jury’s decision. The State’s case was “weak” and largely circumstantial, the Court said. While a prosecutor may call a defendant a “liar,” emphasizing discrepancies between the evidence and the defendant’s testimony, “misconduct occurs when a jury could reasonably believe that the prosecutor was, instead, expressing a personal opinion as to the witness’s credibility,” the Court explained. In other words, the prosecutor’s own assessment of Linda’s story ran “directly afoul” of Supreme Court precedent, denying her a fair trial.

Despite the deference required by the AEDPA, the state court’s decision was contrary to clearly established federal law, and thus the federal court was empowered to grant Linda relief under § 2254(d).

Counsel’s Failure to Object

Linda’s prosecutorial misconduct claim was intertwined with her IAC claim for counsel’s failure to object to those comments. Under Strickland v. Washington, 466 U.S. 668 (1984), she had to show that counsel’s failure to object wasn’t only unprofessional but that “the result of the proceeding would have been different” absent the error. The Court found that when counsel fails to object to a significant error, “there is little a defendant can do other than rely on his or her attorney to lodge an appropriate and timely objection,” and the failure to do so “can have devastating consequences for an individual defendant.”

“Prosecutorial misconduct in closing arguments is far more likely to affect the jury’s deliberation and verdict,” the Court noted. “Had Stermer’s counsel objected, there is a reasonable probability that the outcome of her trial would have been different,” the Court concluded.

The Court also explored her other IAC claims and found they also would have affected the outcome of her trial. However, the Court found that the failure to obtain an arson expert claim was procedurally barred, and the appellate counsel IAC claim was moot anyway, given she was entitled to a new trial on the prosecutorial misconduct claim.

Accordingly, the Sixth Circuit affirmed the grant of habeas relief to Stermer and upheld the grant of a new trial. See: Stermer v. Warren, 959 F.3d 704 (6th Cir. 2020). 

Related legal case

Stermer v. Warren

 

 

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