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South Carolina Supreme Court Grants New Trial Due to Prosecutor’s Prejudicial Closing Remarks

by Douglas Ankney

The Supreme Court of South Carolina granted a new trial to Oscar Fortune after the Court determined Fortune’s due process rights were violated by prejudicial remarks from the prosecutor during closing argument.

At Fortune’s murder trial, evidence was presented that both Fortune and victim Anthony Shields possessed and fired guns. Fortune claimed self-defense, returning fire after Shields shot at him. A jury convicted Fortune, and his conviction was upheld on appeal.

Fortune then filed an application for post-conviction relief (“PCR”), alleging his trial counsel was ineffective for failing to request a curative instruction and for failing to move for a mistrial after the assistant solicitor’s prejudicial statements. During closing argument, the assistant solicitor told the jury: “My job is to present the truth. In fact, if you look in the South Carolina Code of Laws which mandates what a solicitor’s job is we can’t be like a normal attorney is. A normal lawyer has to advocate on behalf of his client. But on the other hand the Solicitor can’t. We have to say what the truth is and it’s —”

At that point, defense counsel objected on the grounds that it’s the jury’s job to determine what the truth is. The trial court ruled: “The jury is the finders of the truth. I think what he was referring to was there is also an obligation on the Solicitor’s Office beyond simply that of presentation, but the jury does have the burden of deciding what is the truth in this matter.”

The assistant solicitor continued by explaining to the jury that if he believed someone charged with a crime is innocent, then he can “nolle prosse” it — meaning the State declares the charge will not be prosecuted. Then he said, “And [if] I know the person has done something that I think the facts show they’re guilty of, then I can’t nolle prosse it. I have to go forward with it. And as I said my job is to show the truth. On the other hand, the defense attorneys’ jobs are to manipulate the truth. Their job is to shroud the truth. Their job is [to] confuse jurors. Their job is to do whatever they have to — without regard for the truth — to get a not guilty verdict.”

Defense counsel objected again, and the trial court ruled, “I don’t think that their job is to defraud the court or the jury and to that extent I sustain the objection.” The PCR court denied Fortune’s application, and the Supreme Court granted review.

The Court observed that the “Due Process Clauses in both the Fifth and Fourteenth Amendments provide that no person may be deprived of liberty ‘without due process of law.’” To determine if the solicitor’s comments in closing argument violated Fortune’s due process rights, the Court had to decide whether the comments were improper, and if so, whether the comments so unfairly prejudiced Fortune as to deny him a fair trial. Darden v. Wainwright, 477 U.S. 168 (1986).

While a prosecutor may strike hard blows, he is not permitted to strike foul ones. Berger v. United States, 295 U.S.78 (1935). It is as much the prosecutor’s duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to obtain a just one. Id. The U.S. Supreme Court has condemned a prosecutor’s closing argument in which he suggested to the jury his “personal impression” the defendant is guilty because such comments convey to the jury that the prosecutor has evidence not known to the jury and may induce the jury to trust the government’s judgment rather than their own. United States v. Young, 470 U.S. 1 (1985).

Courts have condemned conduct where the prosecutor invoked his duty to dismiss unfounded cases and boasted of his responsibility to prosecute defendants he knew to be guilty. Devine v. United States, 403 F.3d 93 (10th Cir. 1968). The South Carolina Supreme Court itself had previously condemned the “solicitor’s personal opinion [being] explicitly injected into the jury’s deliberations as though it were in itself evidence.” State v. Woomer, 284 S.E.2d 357 (S.C. 1981). Furthermore, prosecutors must refrain from impugning the integrity or institutional role of their brothers and sisters at bar who serve as defense attorneys. United States v. Ollivierre, 378 F.3d 412 (4th Cir. 2004).

In the instant case, the Court found the solicitor’s remarks not only improper but “absolutely inexcusable.” And with regard to whether those remarks prejudiced Fortune, the Court observed that “arguments of this kind can rarely be harmless.” State v. Thomas, 339 S.E.2d 129 (S.C. 1986). The evidence against Fortune was hardly overwhelming. And the trial court’s response “I don’t think that [Defense Counsel’s] job is to defraud the court or jury” was weak and served to enhance rather than mitigate the prejudicial impact of the solicitor’s misconduct. The Court concluded the solicitor’s improper statements to the jury during closing argument “infected Fortune’s trial with such a high degree of unfairness as to make his conviction a denial of due process.”

Accordingly, the Court reversed the order of the PCR court denying Fortune relief and remanded to the court of general sessions for a new trial. See: State v. Fortune, 2019 S.C. LEXIS 115 (2019). 

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State v. Fortune



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