Metropolitan News-Enterprise


Tuesday, January 18, 2011


Page 1


C.A. Tosses Convictions Over Prosecutor’s Misconduct


By SHERRI M. OKAMOTO, Staff Writer


The Fourth District Court of Appeal has thrown out a San Diego man’s convictions for burglary and assault based upon the prosecutor’s “pervasive pattern of misconduct” throughout the 2009 trial before Superior Court Judge Charles G. Rogers.

Div. One ruled Thursday that the cumulative effect of San Diego Deputy District Attorney Christopher M. Lawson’s inappropriate questions, comments and argument disparaging the credibility of defendant Raymond Higgins and the integrity of defense counsel Thomas J. Warwick had rendered the proceedings fundamentally unfair.

Higgins was charged with various criminal charges stemming from an incident in which he broke into a neighbor’s home with two guns in his possession. The first jury empanelled to consider the case against Higgins deadlocked and a mistrial was declared, and a second trial was convened in 2009.

This jury found Higgins guilty of burglary, assault with a deadly weapon, and assault with a firearm. It also found true allegations that Higgins had personally used a firearm in the commission of his offense and Rogers subsequently sentenced Higgins to five years in state prison.

Writing for the appellate court, Justice Cynthia G. Aaron noted that Lawson had posed improper questions throughout the trial, often repeatedly and despite objection, and made improper and inflammatory remarks during closing argument which caused unfair prejudice to Higgins.

Among the misconduct cited was Lawson’s reference to the fact that a defense expert had testified for Warwick on prior occasion “in a rape trial,” which Aaron said “served only to provide the jury with the irrelevant and potentially inflammatory information that [the expert]and Higgins’s attorney had worked together in the past to defend someone accused of rape—a fact that could have caused the jurors to regard both Higgins’s counsel and Dr. Kalish in an unfavorable light.”

The potential prejudice from the prosecutor’s mention of the rape trial “was exacerbated by the fact that the trial court overruled defense counsel’s objection to the remark” and was “amplified by an extremely prejudicial remark that the prosecutor made later in the case” in which Lawson asserted the defense tactic in the rape trial was to “attack” the victim, Aaron added.

Aaron acknowledged that the expert’s history of working with defense counsel “may have been relevant,” but emphasized Lawson’s remark about “attacking” the rape victim at the prior trial “was inexcusable.”

Based on the prosecutor’s choice of language, Aaron reasoned “one can only conclude that the prosecutor was attempting to prejudice the jury against defense counsel and the defense expertand, by association, Higgins.”

Lawson’s argument also “suggested that [the expert] had testified inconsistently in the two trials” and implied “defense counsel and [the expert]were willing to present whatever testimony might be necessary to help a client avoid conviction,” Aaron said, opining:

 “This type of attack clearly constituted misconduct, and was highly prejudicial.”

Aaron said she “was “not convinced” that the trial court’s admonition to the jury to disregard Lawson’s remarks was sufficient to cure the harm since the admonishment came five days after Lawson first mentioned the rape trial and several hours after the prosecutor’s improper characterization of the defense as an “attack” on the rape victim.

Lawson also “crossed the line” during closing argument in describing the defense expert as a “hired gun” who had been paid to create an “excuse” for Higgins, and misstated the record by telling the jury the defense expert “had tried to avoid having his conclusions examined by the prosecutor before trial,” Aaron said.

Further misconduct in Lawson’s closing included a comment that defense counsel’s cross-examination of one of the two main prosecution witnesses amounted to “tak[ing] advantage” of an opportunity,” which “unfairly suggested that defense counsel was doing something improper in thoroughly cross-examining a prosecution witness,” as well as a reference to the defendant’s potential punishment and assertion the jury had a “right” to “make sure the community gets justice,” the justice added.

Lawson’s cross-examination of Higgins also constituted an improper attack on the defendant’s credibility due to the prosecutor’s argumentative questions and repeated suggestions Higgins had been “coached” by counsel, Aaron said.

Aaron reasoned that “the pervasive nature of the prosecutor’s improper comments and questions in this case, and the fact that it is clear from the record that the prosecutor was undeterred by the trial court’s repeated sustaining of objections to his improper questions and argument,” meant that admonitions “would not have served to cure the unfairness caused by the prosecutor’s conduct.”

Since the central issue at trial was Higgins’s intent, Aaron concluded “the case turned on the jury’s assessment of Higgins’s credibility,” so “the prosecutor’s repeated attempts to undermine Higgins’s credibility—as well as the integrity of defense counsel and the defense expert witness—by posing grossly improper questions and presenting improper argument, was particularly prejudicial” and the “aggregate prejudicial effect of the prosecutor’s conduct therefore require[d] reversal.”

Justices James A. McIntyre and Gilbert Nares joined Aaron in her decision.

Lawson was admitted to practice in 2005 and has no public history of discipline, according to the State Bar website. Multiple telephone calls to the number he provided the State Bar were unanswered on Friday. Warwick also did not return a message left with his office.

A spokesperson for the district attorney’s office said the decision was being reviewed and reserved comment until the review was complete.

The case is People v. Higgins, 11 S.O.S. 288.


Copyright 2011, Metropolitan News Company