Prosecutorial Misconduct Illinois

PROSECUTORIAL MISCONDUCT

1st Dist. People v. Abadia No. 1-99-2023 & 1-99-2685 (cons.)
(November 13, 2001) 1st div. (COHEN) (COUSINS, special concurrence)
Reversed and remanded. CLOSING ARGUMENT

Although evidence was sufficient to convict defendants of murder,
attempted murder, and armed violence, and delay of one day before
swearing jury did not prejudice defendants, case must be remanded
for new trial; because prosecutors improper remarks, during which he
accused defense counsel of abusing witness, and fabricating defense
theory, and defendants of intimidating witnesses, deprived
defendants of fair trial.

1st Dist. People v. Stafford No. 1-99-1770 (October 26, 2001) 6th div.
(FROSSARD) Reversed and remanded. 2001 Ill. App. LEXIS 811, DUE
PROCESS/PROSECUTORIAL VINDICTIVENESS

Trial court deprived defendant of due process when it allowed State
to reinstate attempted murder charges, that had been nolle prossed
in earlier case, right before trial for murder. State must re-indict
or provide preliminary hearing in order to reinstate charges. Even
though court refused to instruct on attempt murder charges,
defendant and his counsel were faced with defending against new
charges on the eve of trial; and jury was informed that defendant
was charged with attempted murder of several victims. Further,
although defendant may be retried on murder charges, re-indictment
on attempt murder charge would be impermissible vindictive
prosecution.

Regarding the five counts of attempted murder, after charges are
terminated by entry of an order of nolle prose qui, reindictment is
prohibited if the circumstances indicate a realistic likelihood of
vindictiveness by the State. People v. Freedman, 155 Ill. App. 3d
469, 473, 108 Ill. Dec. 165, 508 N.E.2d 326 (1987). Prosecutorial
vindictiveness occurs when reindictment would subject a defendant to
increased sanctions or when reindictment takes place after the State
has terminated part of an indictment by way of motion for an order
of nolle prose qui and the defendant has successfully appealed his
conviction. Freedman, 155 Ill. App. 3d at 473, citing People v.
Johnson, 102 III. App. 3d 1056 (1981). Under such circumstances,
reindictment is vindictive because the State is retaliating from the
defendant's successful appeal by reindicting. Freedman, 155111. App.
3d at 474. "Such conduct by prosecutors creates an enormous
potential for discouraging defendants from appealing legitimately
for fear of greater or additional offenses arising out of the same
cause of action." Freedman, 155 Ill. App. 3d at 474. When there is a
realistic likelihood of vindictiveness, the State bears the burden
of demonstrating objective on-the-record facts which justify a
decision to prosecute charges previously nol-prossed.

1st Dist. People v. Johnson (November 15, 2000) 3rd div. (WOLFSON)
Reversed and remanded. Trial court committed plain error when it
allowed prosecutor to introduce evidence of defendant's prior
arrests and gang affiliation; and prosecutor made improper comments
with regards to defendant's failure to testify, and about
defendant's counsel in closing argument.

-1st Dist. People v. Edgecombe No. 1-99-1345 (October 31, 2000) 2nd
div. (MCBRIDE) CLOSING ARGUMENT, Reversed and remanded. Conviction
of defendant after jury trial of armed robbery must be reversed
based on prosecutor's improper argument. Remarks such as "no one ...
said ...defendant was just standing there," "nobody told you that,"
and "no one ... said anything different," were designed to focus the
jury's attention upon the defendant's failure to testify. Also,
additional comments were an improper attempt to shift the burden of
proof to the defendant. On remand, the court should not allow state
to present police officer's hearsay testimony of defendant's flight
upon being apprehended.