Under the influence of drugs and in search of money for more, George Smithey paid a visit to Cheryl Nesler, whom he robbed, raped, and brutally murdered. During his trial, the prosecutor repeatedly asked the defendant's mental health expert questions concerning whether Smithey could or did form the intent to commit the crimes charged. Such questioning violates California law which makes the conclusion as to intent or capacity to commit a crime the exclusive purview of the jury. From the state's expert, Dr. Coleman, the prosecutor elicited testimony that mental health professionals are essentially worthless to determine a defendant's mental state at the time of the commission of a crime. Dr. Coleman asserted the tests used by such professionals are, among other things, interpreted subjectively and are not designed for use in a forensic setting. Smithey was found guilty of the crimes charged and sentenced to death. He appealed.
Holding: Affirmed. The California Supreme Court held that the prosecutor's questions regarding intent and capacity, even if a calculated effort on his part to persuade the jury, were not prejudicial. The jury was unlikely to have been misled by the prosecutor's misconduct inasmuch as the trial judge issued an immediate admonishment to the jury to disregard questions on those issues, and further explained that defense counsel's objections were proper.
Smithey also asserted that he was denied effective assistance of a psychiatric expert in light of the admission of Dr. Coleman's testimony about the worthlessness of psychiatry and the directive that the jury not "listen to any psychiatric labels or psychiatric reconstruction." The court held that Coleman's directive was not absolute, rather, Coleman had said that if the jury determined that in light of all the evidence, the methods used were reliable, they must give the opinions of defense experts whatever weight they feel they deserve. On that point, the trial court also instructed the jury that an expert is entitled to give an opinion, and the jury could disregard it if unreasonable. The appellate court held that the instruction rendered the admission of the testimony "clearly nonprejudicial."
| Thomas J. Kapsak Assistant Prosecutor - Homicide Middlesex County Prosecutor's Office |
Thomas J. Kapsak, Esq. comments: In Smithey, the California Supreme Court ruled that a prosecutor cannot question a defense psychiatrist about the defendant's capacity to form the specific intent to commit murder, or about whether he did in fact form the specific intent to commit murder. The Court based its ruling on a section of the California penal code that abolished the defense of diminished capacity and limited expert testimony to diagnosis and description of the defendant's mental disease, defect, or disorder at the time of his crimes. The California legislature had determined as a matter of public policy that expert testimony by a psychologist or psychiatrist concerning a defendant's specific intent to commit a crime is unreliable and inappropriate. The expert's conclusion, based on a review of the file and an interview with the defendant several months after the crime, is essentially opinion on ultimate fact, i.e. innocence or guilt, not on medical expertise. Consequently, it invades the proper province of the jury.
While California's position on this issue is held in many states throughout the country, several jurisdictions take the opposite view. The reasoning in those jurisdictions is that where the criminal code requires a specific mental state such as willful, deliberate and premeditated, testimony tending to rebut such a state of mind is relevant and material to an essential element of the crime, and a psychologist or psychiatrist is competent to provide testimony thereupon. These jurisdictions are not so concerned about the ultimate issue problem as long as the trial judge determines that the expert is qualified, his testimony is scientifically reliable and it assists the fact finder.
The penal code sections cited by the California Supreme Court in Smithey prohibit both the prosecutor and the defendant from offering expert testimony regarding intent. It is particularly unfair for the prosecutor to grill the defense expert on the issue of intent after he was prevented from fully explaining his opinion during direct examination.
In California, the defendant may offer psychiatric testimony regarding mental disorders affecting cognitive functions necessary to formulate intent, and he may argue to the jury that the mental disorder prevented him from forming the requisite specific intent. The prosecutor may cross-examine on the existence and nature of the mental disorder, and he may attempt to show intent during cross-examination, by emphasizing the defendant's acts which illustrate intent. The prosecutor will then have the ammunition he needs for summation when he will ask the jury to decide the ultimate issue; the defendant's guilt based on the requisite specific intent as evidenced by his acts before, during, and after the commission of the crime.
| William D. Evans, Esq. Criminal Defense Attorney Law Offices of Moore, Rutter and Evans |
William D. Evans, Esq. comments: It is considered unprofessional conduct for a prosecutor to ask legally objectionable questions or to make other impermissible comments in the jury's presence knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury, according to the Standards for Criminal Justice of the American Bar Association and California Evidence Code. Although there is no disagreement regarding this rule, no effective remedy exists for its breach.
There are cases in which the reviewing court has reluctantly reversed a conviction because of pervasive and repeated acts of misconduct by the prosecutor to the point where a defendant's right to a fair trial was violated. A reversal typically requires a record of continual, pervasive acts of misconduct which create cumulative prejudice and a clear showing of a miscarriage of justice. People v. Hill, 1 Cal. 4th 843, 72 Cal. Rptr. 2d 656 (1998). The preferred action for courts to take is to criticize the prosecutor in the appellate opinion but uphold the conviction, if any curative instruction was given and the record otherwise supports conviction.
Defense counsel has limited options to deal with an overly aggressive prosecutor at trial. The courts are not inclined to initiate contempt proceedings against a prosecutor (Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 Tex. L. Rev. 629, 673-74). State or local bar disciplinary proceedings are infrequent and are of no value to the defendant. There are few reported cases where a prosecutor has been the subject of disciplinary action by the state bar.
The recommended course of conduct for a defense attorney, therefore, is to anticipate potential misconduct and call it to the court's attention through an appropriate motion in limine. California Evidence Code § 1181(5) invests the court with authority to order a new trial when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial. There is a greater likelihood of obtaining a meaningful trial remedy or reversal if the court has warned the prosecutor in advance and the court admonition is subsequently ignored. This also sets the stage for a motion for mistrial.
When prejudicial misconduct occurs, the trial judge should be pressed to give a meaningful curative statement and instruction to the jury, rather than to simply direct the jury to disregard the prosecutor's remarks. Such an instruction should underscore the improper nature of the prosecutor's remarks and conduct, as well as his apparent effort to prejudice the jury against the defendant. It is imperative that defense counsel request a jury admonition if the trial court sustains an objection, in order to preserve the issue for appeal. A model instruction was proposed by the California Supreme Court in People v. Bolton, 23 Cal. 3d 208, 215, 152 Cal Rptr. 141, 145 (1979).
