Improper Closing Argument [UPDATE]

UPDATE: On November 7, 2016, the Court of Special Appeals GRANTED the Application for Leave to Appeal the Denial of Post Conviction Relief in my client’s case!  I am so thrilled to have the opportunity to continue to fight for my client.  The Court’s Order is below.  The granting of an Application for Leave to Appeal is rare.  According to C. Justin Brown, between 2010 and 2014 the Court of Special Appeals granted just 1.22% of all of the Applications filed.

Recently, the Court of Special Appeals ordered the State to respond to the Application for Leave to Appeal the Denial of Post Conviction Relief in one of my cases.  You can read more about ALA’s in general, here.   I’ve posted the Court’s order and my Application for Leave to Appeal below.  The Court’s order is the first step toward getting the ALA granted.  After the State responds, the Court could set the matter in for full briefing and oral argument, it could deny the ALA, or it could grant the ALA based on the pleadings alone.

On January 12, 2015, I argued that my client was entitled to post conviction relief in the form of a new trial because his trial counsel rendered ineffective assistance for failing to object to the State’s improper closing argument.  I also raised several other claims of ineffective assistance of counsel.  My client’s lawyer was deceased  by the time of the post conviction, so I brought an expert with me to testify about his opinion of trial counsel’s conduct.  The post conviction court would not receive testimony from my expert because it held that the court alone would decide whether trial counsel was ineffective or not.  Therefore, the court ruled, the expert’s opinion on the subject would not be helpful to the court.  Without trial counsel to put on the stand and with no expert to question, I argued from the transcript.  I argued that the State injected the specter of witness intimidation into the trial during closing arguments when there had been no evidence of witness intimidation, that trial counsel should have objected to the State’s improper comments, and that there was no possible trial strategy behind trial counsel’s failure to object.  Trial counsel’s mistake was harmful to my client because the improper remarks negatively influenced the jury against my client.  If the jury believed that my client was the type of person who went around intimidating witnesses who might testify against him, then they might think he was more apt to be guilty of first degree murder.    Although the post conviction court agreed that the State’s comments were improper and trial should have objected to the improper remarks, the court disagreed that trial counsel’s mistakes harmed my client.  The post conviction court ruled that the evidence against my client was strong; and therefore, trial counsel’s mistakes were, essentially, harmless.  I am hopeful that the Court of Special Appeals sees it differently.  I’ll keep you posted.

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