Saturday, June 10, 2000

Judges toss out drug conviction

Appeals court rules prosecutor out of line

By Dan Horn
The Cincinnati Enquirer

        A man convicted on drug charges will get a new trial because a prosecutor compared his defense to a bad hand of poker.

        An appeals court decided Friday that the prosecutor's remarks made it impossible for George Freeman to get a fair trial.

        Mr. Freeman, 44, was sentenced to 10 years in prison after his conviction for trafficking crack cocaine in 1998.

        The Ohio 1st District Court of Appeals ordered a new trial for Mr. Freeman, whose case will be sent back to Hamilton County Common Pleas Court.

        In an opinion written by Judge Mark Painter, the court concluded that Assistant Prosecutor David Wood made inappropriate comments during closing arguments.

        Although Judge Painter acknowledged that the comments were made “in the heat of battle,” he said they crossed the line from aggressive to improper.

        “The assistant prosecutor probably did not set out to make improper comments,” the judge wrote.

        “(But) the fairness of the trial was undermined.”

        Mr. Wood made the comments while summarizing the prosecution's case against Mr. Freeman. At one point, he made statements that Mr. Freeman claimed were intended to denigrate his case.

        “It is like poker,” Mr. Wood said, referring to Mr. Freeman's defense. “If you get dealt bad cards, you got to play them.”

        Later, Mr. Wood referred to a defense expert witness as someone who “came in under the guise of being a scientist.”

        The appeals court concluded that those comments met the standard for prosecutorial misconduct, which is any conduct that “prejudicially affected the substantial rights of the accused.”

        Prosecutor Mike Allen said the court's decision goes too far because it unfairly limits prosecutors' ability to aggressively try their cases.

        He said Ohio law does not clearly define what can and cannot be said during closing arguments.

        “It's to the point that we don't know what we can say,” Mr. Allen said. “There's no clear, bright line.”


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