Prosecutor's feigned sleep during defense closing didn't create prejudicial error, court says
Maine’s top court has refused to overturn a murder conviction in a case where the prosecutor admitted he likely tried to annoy the defense lawyer by feigning sleep during his closing.
The Maine Supreme Judicial Court ruled (PDF) on Tuesday that there was no prejudicial error in the trial of Buddy Robinson, who was convicted in the death of his downstairs neighbor, report the Legal Profession Blog, the Bangor Daily News and the Lewiston-Auburn Sun Journal. The news stories identify the prosecutor as then Assistant Attorney General Andrew Benson.
Feigned sleep by the prosecutor “was sophomoric, unprofessional and a poor reflection on the prosecutor’s office,” the court said. Yet the trial judge did not err in denying Robinson’s motion for a new trial given the strength of the prosecution case, the Supreme Judicial Court said.
The court also found no prejudicial harm in one of the prosecutor’s closing arguments, though the court said it was improper. Benson told jurors: “I’ve been a criminal prosecutor here in the state of Maine pretty much for all of the last 25 years, the last 13 doing exclusively homicide trials for the attorney general’s office, and, strangely enough, when it comes to trial, I’ve always been wrong. I’m always wrong. We never get the right person. And, as [defense counsel] told you in his opening statement, once again, we’ve made a mistake. We’ve gotten the wrong person.”
That statement was intended to present the prosecutor as the voice of experience and to assure jurors that it had been fruitless in other cases for the defense to argue the wrong person was charged, the Supreme Judicial Court said. The prosecutor’s argument was an improper call for the jury to base its decision on extraneous information, the court said.
Benson was also accused of mouthing words during the defense closing in response to the opposing lawyer’s rhetorical questions, but there was conflicting evidence as to whether it happened. A lawyer who observed the trial said he saw the prosecutor mouth the words “He did” or “He did it” in response to the questions, which were intended to show Robinson couldn’t have known information necessary to commit the crime.
The prosecutor denied mouthing words, and two detectives denied seeing such conduct. A trial judge said the conduct, “if it occurred,” did not require a new trial. The Supreme Judicial Court agreed, though it said such conduct, “if it occurred,” was wrongful.
