It's misconduct in Missouri, too.

Just another in my posts to defend the KSC, who was much maligned when it reversed a few cases based on prosecutorial misconduct. In State v. Banks, the Missouri Supreme Court reversed a first-degree murder conviction after the prosecutor argued that "we have to go and catch the Devil, there are no angels as witnesses. This is Hell. He is the Devil. They weren't angels. He is guilty beyond a reasonable doubt." The Missouri Supreme Court aptly described the situation:

Although every witness, party, opposing counsel, and other participant in a trial is a victim and injured by such conduct, the ultimate victim is our system of justice itself. Respect for the rule of law and our system of administering it depend upon public trust and confidence, whether it is in civil or criminal cases. Historically fundamental to that system has been the concept that individuals and corporations are tried (civilly or criminally) for their acts and not for simply who they are (or are alleged to be). It is tragic that the common observation of laymen is that it is just lawyers being lawyers.

Although courts cannot provide the sole solution, when one asks what courts have done to stem this behavior, the answer too often is "precious little." Judges and lawyers and sometimes both decry this behavior and urge some answer. Judges criticize lawyers for their behavior. Lawyers criticize judges for tolerating it or for not taking firm actions to stop it. Appellate courts frequently play their role as well by finding no abuse of discretion or no prejudice, or by describing as a tactical decision defense counsel's failure to object, without admitting that counsel may not be willing to object where there is little chance of it being sustained or of any meaningful relief being granted on appeal. All who participate in the trial of a case are reminded, just as the prosecutor is reminded by the comment to Rule 4-3.8, that juries are to decide cases on the evidence presented - not appeals to unreasoned emotion or name-calling.

I guess my only comment is, for all of the criticism the KSC gets from prosecutors for its prosecutorial misconduct jurisprudence, it has seemed to make little difference in practice. Even when misconduct is found, the appellate courts only reverse 1 in 20 cases, and even then the prosecutor gets a second bite at the apple even when reversed, it seems to provide little deterrence. It seems like many (most?) prosecutors are willing to roll those dice. Sometimes I feel like the appellate courts think they are shaming prosecutors when they yell at them in oral argument about how egregious the misconduct was, but don't see that many (most?) prosecutors care so long as the conviction is not reversed. Many of the worst violators seem to get a laugh out of it when the appellate courts hammer them in oral argument and I suspect it's because they know the appellate courts are unlikely to reverse.

I think to really do more than the "precious little" described by the Missouri Supreme Court, appellate courts would have to really reverse a higher proportion of cases where misconduct is found and/or make the reversals with prejudice. That would probably be more of a deterrent.