State v. Michael Hecht 71059-1-l

The court was asked to deicide if a prosecutor improperly appeals to the passion and prejudice of a jury by using graphics in closing arguments that show the defendant’s face with the words “GUILTY” superimposed in red. The court found that this was prejudicial and that the misconduct was flagrant and ill intentioned, and the prejudicial impact could not have been cured by a jury instruction. The court ordered that the conviction be reversed and remanded for a new trial.

Mr. Hecht was elected to Pierce County Superior Court as a judge in 2008. He defeated Judge Sergio Armijo. After the election, Judge Armijo’s son began investigating Mr. Hecht regarding allegations of patronizing Tacoma street prostitutes. The investigation found that Mr. Hecht had patronized several prostitutes and threatened one of them. Charges of felony harassment (RCW 9A.46.020) and one count of patronizing prostitutes (9A.88.110) were filed.

The case proceeded to trial. Several witnesses testified that Mr. Hecht had picked them up in downtown Tacoma for sex. Two witnesses testified that Hecht had threatened to kill Mr. Hesketh (one of the alleged prostitutes). Mr. Hecht testified that he occasionally picked up transients to give them work in his law office. He denied paying for sex. In closing argument the prosecutor used a slide show. One of the slides had a drivers license photo of Mr. Hecht with guilty in red diagonally across his face. Another slide stated “Defendant’s creditability” and asked “If he is not truthful about the little things … [w]hy should you believe him when he denies the big things?” and answered, “YOU SHOULDN’T”.

Mr. Hecht was convicted on both charges and was ordered to do community service rather than jail. On appeal Mr. Hecht argued that the slides were a violation of his right to a fair trial.

The right to a fair trial is a fundamental liberty secured by the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 22 of the Washington State Constitution. Glasmann, 175 Wn. 2d at 703. “‘A “[fjair trial” certainly implies a trial in which the attorney representing the state does not throw the prestige of his public office . . . and the expression of his own belief of guilt into the scales against the accused.'” Id. at 704. A prosecutor may make use of graphics in closing argument to highlight relevant evidence and generally has wide latitude to argue reasonable inferences from the evidence, but prosecutorial misconduct may deprive a defendant of his constitutional right to a fair trial. Id. at 703-704.

To prevail on a claim of prosecutorial misconduct, a defendant must show that the prosecutor’s conduct was both improper and prejudicial. Id. at 704. To show prejudice, a defendant must demonstrate a substantial likelihood that the misconduct affected the jury verdict. Id. at 704.

The Supreme Court also stressed that existing case law and professional standards for prosecutors preclude the expression of personal opinions of the defendant’s guilt and “clearly warned against” such use of the slides in closing argument. Id. at 707. The court emphasized that a prosecutor has the duty to “‘seek convictions based only on probative evidence and sound reason.'” Consistent with this duty, a prosecutor “‘should not use arguments calculated to inflame the passions or prejudices of the jury.'” Id. at 704.

We conclude that the prosecutor’s slides undermined Hecht’s right to a fair trial by creating the substantial likelihood of a verdict improperly based on passion and prejudice. “The impact of such powerful but unquantifiable material on the jury’s exceedingly difficult to assess” but, as in Glasmann, we conclude that the misconduct was so flagrant and ill-intentioned that it caused an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury. The prosecutor’s misconduct necessitates reversal of both convictions and remand for a new trial. None of the remaining issues raised by Hecht merit appellate relief.

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