Ohio Criminal Appeals Lawyer Blog

Today the Second District Court of Appeals reversed the two year prison sentence imposed by one trial judge and remanded the case for re-sentencing by a different trial judge. The prosecutor failed to live up to his side of the plea agreement because, at the plea hearing, the prosecutor agreed to recommend community control with inpatient treatment. But when it came time for sentencing, the prosecutor aggressively cross examined a doctor who testified that the defendant needed treatment instead of prison and then the prosecutor failed to recommend inpatient treatment as he promised he would. The Court of Appeals found the defendant's trial counsel failed to provide the effective assistance of counsel when he failed to object to the prosecutor's conduct and thereby breached his duty to his client as you can read by clicking here.

Sometimes prosecutors make improper arguments and the Court of Appeals warns them not to make them again. Maybe the argument did not result in reversible error this time, but in the right case under the right conditions it could. Criminal defense lawyers on appeal should keep an eye out for these.

For example, in a recent case involving the rape of a child under thirteen years of age (click here for the case), a prosecutor made the following argument:

"And I think you would all agree with me that one of the decisions that's the most important in your life is who you leave your kids with, who you let baby-sit your kids. And since he asked you about forming opinions on the most important things in the victim's life, I'm going to ask you this: 'Would you let this defendant baby-sit your four-year-old daughter? Would you?"

The Second District Court of Appeals found this argument to be improper. It was "irrelevant and inflammatory" and "only served to incite passion and open the door to the consideration of improper facts in rendering judgment." Keep your eyes and ears open for arguments like this.