The Washington state Supreme Court has overturned the conviction of a Pierce County man for what it termed “flagrant” and “ill-intentioned” misconduct on the part of a deputy Pierce County prosecutor.
On a 5-4 vote, the court order a new trial for Edward M. Glasman, who had been convicted of second degree assault, second degree robbery, first degree kidnapping and obstruction arising from a drug-and-alcohol fueled 2004 birthday party at a Lakewood motel.
Writing for the majority, Chief Justice Barbara Madsen concluded: “During closing argument, the prosecuting attorney made an electronic presentation to the jury that graphically displayed his personal opinion that Glasmann was 'guilty, guilty, guilty' of the crimes charged by the State."
“The prosecutor's misconduct was flagrant, ill intentioned, and we cannot conclude with any confidence that it did not to have an effect on the outcome of the trial. We reverse the defendant's convictions and remand for a new trial.”
The opinion did not specify which deputy prosecutor handled the case.
Glasman had been charged with assaulting his fiancé in the motel room, in the parking lot at at a nearby minimart. Here is how Madsen describes the use of the PowerPoint during closing arguments:
“Near the end of the presentation, the booking photo appeared three more times: first with the word 'GUILTY' superimposed diagonally in red letters across Glasmann's battered face. In the second slide the word 'GUILTY' was superimposed in red letters again in the opposite direction, forming an 'X' shape across Glasmann's face. In the third slide, the word 'GUILTY,' again in red letters, was superimposed horizontally over the previously superimposed words.”
Glasman’s attorney did not object to the use of the slides. He was convicted and sentenced to 210 months in prison.
But Madsen said the combination of the photo, which showed a bloodied Glasman, and the captions was improper.
“While the State argues that it merely combined the booking photograph, admitted as exhibit 89, with the court's instructions and argument of the law and facts, the prosecutor's conduct went well beyond this,” Madsen wrote. “Indeed, here the prosecutor's modification of photographs by adding captions was the equivalent of unadmitted evidence.”
“A prosecutor could never shout in closing argument that 'Glasmann is guilty, guilty, guilty!' and it would be highly prejudicial to do so. Doing this visually through use of slides showing Glasmann's battered face and superimposing red capital letters (red, the color of blood and the color used to denote losses) is even more prejudicial.”
She was joined by Justices Charles Johnson, Debra Stephens and former Justice Gerry Alexander serving pro tem. Justice Tom Chambers wrote a concurring opinion.
The dissenting opinion was written by Justice Charles Wiggins who agreed that the prosecutor’s conduct was in error but didn’t think it was enough to void all of Glasman’s convictions.
“While it may appear at first glance that the prosecutor's error is grave enough to warrant a new trial on all of Glasmann's convictions, a closer examination of the facts reveals a different story,” Wiggins wrote. Three other justices joined his dissent – Justices Susan Owens, Mary Fairhurst and James Johnson.
“I cannot agree that we should reverse his convictions for obstruction of a law enforcement officer, attempted second degree robbery, and first degree kidnapping,” Wiggins wrote. “For each of these convictions, either Glasmann admitted to the crime or the evidence was so overwhelming that the jury would have convicted him regardless of the prosecutor's improper conduct. Nor can I agree that the prosecutor's statements during closing argument shifted the burden of proof to Glasmann.”
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