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Name: People v. Higgins
Case #: D055649
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 01/13/2011

The prosecutor’s numerous instances of misconduct require reversal of the conviction. Appellant claimed the prosecutor engaged in a pattern of misconduct during the trial that rendered it fundamentally unfair. The Court of Appeal agreed. The types of misconduct included attacking the integrity of defense counsel and the defense expert witness by, among other things, arguing they had previously worked on a rape trial together to “attack” the rape victim in that case, expressing that the expert was a hired gun who had been paid to make up a defense, suggesting that defense counsel coached appellant’s testimony, and suggesting that defense counsel was doing something improper by thoroughly cross-examining the complainant. The prosecutor also committed misconduct by asking argumentative questions of appellant in an attempt to discredit him and his defense. Also, it was misconduct to argue to the jurors that they had a “right” to seek justice for the community, and to refer to appellant’s potential sentence in an effort to counterbalance evidence of appellant’s good character. While defense counsel did not object to every instance of misconduct, where, as here, there is a pattern of impropriety, the reviewing court can consider it. In analyzing prejudice the court recognized that any one of these instances of misconduct may not have been prejudicial; but considered as a whole, the court concluded they were. The central issue in the case was appellant’s credibility, and the improper conduct involved attempts to undermine his credibility or that of the defense in general. Further, the first trial resulted in a hung jury, and the state of the evidence had not changed between trials.