by Alex KornfeldJUSTICE FEW TORCHES “ABSOLUTELY INEXCUSABLE” CLOSING ARGUMENTS; SUPREME COURT GRANTS OSCAR FORTUNE A NEW TRIAL
As a kid I can remember visiting family in the Midwest. I’d often see an old rusty truck with a weathered bumper sticker that read, “Don’t Take Farmers For Granted”. Practicing law reminds me not to take our freedom for granted. I once was sitting with C. Carlyle Steele, the quintessential southern lawyer, when a man said, “well he can’t do that!” to which Carlyle responded, “he just did!”. The point of this story is to illustrate that if the government goes unchecked, if they are not ALSO held to the law, citizens rights can be and will be violated. Laws and rules can be and will be disregarded.
Just as in a football game, if the offense holds a defender and the Refs don’t see it you’ll often see the coach for the defense losing his mind. As a defense lawyer in South Carolina, there seems to be a lot of times to lose my mind but none seems to be so egregious as what occurred in the case of the State of South Carolina v. Oscar Fortune.
Oscar had the “misfortune” of being charged with murder and possession of a weapon during the commission of violent crime on December 23, 2001. He has been locked up since March 9, 2006. It’s important to note this because this case was just heard by the South Carolina Supreme Court on October 15, 2019 and an opinion was just issued on December 4, 2019. That’s a lot of time.
The jury found Oscar guilty of murder and possession of a weapon during the commission of a violent crime and Oscar was sentenced to thirty-seven years in prison. The Court of Appeals upheld the conviction in 2009. Oscar then filed an application for PCR alleging that his counsel should have requested a curative instruction and for failing to move for a mistrial in relation to the Solicitor’s closing arguments. Oscar argued the Solicitor’s statements violated his right to due process and counsel. The PCR Court denied Oscar relief so Oscar filed a petition for a writ of certiorari with the Supreme Court of which ultimately brought us here. The PCR Court reasoned, “The solicitor’s remarks, while improper, are not so prejudicial to [Oscar Fortune’s] substantial rights so as to deprive him of a fair trial, especially when combined with the accompanying objections of trial counsel and the curative comments of the trial judge.”
The Supreme Court of South Carolina asked, “whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’”
At Fortune’s trial, the assistant solicitor began his closing argument:
SOLICITOR: Ladies and gentlemen of the jury, thank you so much for your time throughout the course of this trial. I want to start by telling you that we both have jobs here. My job is to present the truth. In fact if you look in the South Carolina Code of Laws which mandates what a solicitor’s job is we can’t be like a normal attorney is. A normal lawyer has to advocate on behalf of his client. But on the other hand the Solicitor can’t. We have to say what the truth is and it’s –
Defense counsel objected, arguing “the jury are the finders of the truth.”
The trial court ruled, THE COURT: The jury is the finders of the truth. I think what he was referring to was there is also an obligation on the Solicitor’s Office beyond simply that of presentation, but the jury does have the burden of deciding what is the truth in this matter.
The assistant solicitor continued, SOLICITOR: And what that means is that we have something in law that [is] called nolle prosse,[1] and [to] nolle prosse a person that has been indicted for a crime or charged with a crime. After further investigation somebody else did the crime where you can dismiss it and nolle prosse is the notif[ication] in which we dismiss the case. And [if] I know the person has done something that I think the facts show they’re guilty of, then I can’t nolle prosse it. I have to go forward with it. And as I said my job is to show the truth. On the other hand, the defense attorneys’ jobs are to manipulate the truth. Their job is to shroud the truth. Their job is [to] confuse jurors. Their job is to do whatever they have to — without regard for the truth — to get a not guilty verdict.
Defense counsel again objected.
The trial court ruled, “I don’t think that their job is to defraud the court or the jury and to that extent I sustain the objection.”
Finally, over 13 years after Oscar was jailed the Supreme Court of South Carolina found the solicitor’s remarks “absolutely inexcusable”.
The Court went on to say, “Whether this assistant solicitor’s closing argument was improper—in light of the long history of courts condemning the same misconduct—is an easy question. The PCR court found it was improper, and we wholeheartedly agree. Whether the assistant solicitor’s misconduct violated Fortune’s due process rights is a tougher judgment call. In State v. Thomas in 1986—twenty years before Fortune’s 2006 trial—we granted the defendant a new trial because—in our judgment—the solicitor’s similarly improper closing argument required it. 287 S.C. at 412-13, 339 S.E.2d at 129. We cautioned solicitors not to engage in misconduct of this sort because we recognized the extent to which it endangers the due process rights of criminal defendants.4 287 S.C. at 413, 339 S.E.2d at 129. Today, we make the same judgment call. The assistant solicitor’s misconduct in his closing argument requires that Oscar Fortune be granted a new trial.”
“The assistant solicitor’s improper statements to the jury during closing argument infected Fortune’s trial with such a high degree of unfairness as to make his conviction a denial of due process. We reverse the order of the PCR court denying Fortune relief and remand to the court of general sessions for a new trial.”
In this case, the Solicitor went way out of bounds and the reason it matters is a man did not get a fair trial and now he’s been sitting in prison for over 13 years.