[Balko] Vanishingly Rare Misconduct Citations | Jackson Free Press | Jackson, MS

[Balko] Vanishingly Rare Misconduct Citations

In 2007, a court tried Sonya and Joseph Smith for felony murder in connection with the 2003 death of their 8-year-old son, Josef, who medical examiners said was beaten and deprived of food and water. The trial was highly publicized, partly due to the Smiths' membership in the Remnant Fellowship, a Christian sect that stresses corporal punishment and dietary restrictions.

During closing arguments, which were broadcast on Court TV, the prosecution decided to put on a show. Here's how it was described in a Georgia Supreme Court opinion (PDF) released last week:

"The prosecutor, in the final moments of her concluding argument on behalf of the state, "clicked" her fingers, at which signal one of the deputies in the courtroom turned out the lights and an associate prosecutor popped a cake out of a grocery bag complete with eight candles, which were then lit with a lighter brought into the courtroom; the prosecutor and her associate then proceeded to sing to "dear Josef," i.e., the deceased victim, the celebratory words to 'Happy Birthday.'

The Georgia Supreme Court did not find that the theatrics prejudiced the jury to the point where the Smiths, who were convicted and sentenced to life plus 30 years, deserve another trial. Nor did the majority find that the defense attorney's failure to object amounted to ineffective assistance of counsel. But both the majority opinion and the dissent did condemn the prosecutor. The majority called the tactic "theatrical," "preposterous," and "highly inappropriate." Dissenting Chief Justice Carol Hunstein was even harsher:

"The prosecutor's birthday production was not meant to be argument or rebuttal: It was a theatrical stunt spun out of pure fantasy. Its sole purpose was to prejudice the rights of appellants before the jury in an impermissible attempt to invoke the jury's passions and divert the jury from the evidence. It offended the dignity and decorum of the court and violated every precept of professionalism and fair play. Yet the trial court did absolutely nothing. The event played itself out without the trial judge performing his duty to maintain decorum in the courtroom.

"It was an assistant district attorney—an officer of the court and a representative of the State of Georgia—who debased the dignity and respect of these criminal proceedings. Rather than 'adher[ing] to the highest standards of professionalism and proper courtroom decorum,' this prosecutor embarrassed every member of our profession with her behavior. The uncontroverted evidence of the events orchestrated by the prosecutor and performed in front of the jury with the tacit permission of the trial court establishes conclusively that the prosecutor did not concern herself with appellants' right to a fair trial. She cared only about winning at any cost without regard to how unfair, how undignified, how disrespectful her actions were."

In two footnotes, Hunstein explored the prosecutor's motivation further:

"I am giving the prosecutor the benefit of the doubt by concluding that her motive for pulling this stunt was simply to evoke sympathy for the victim in an unprofessional attempt to obtain guilty verdicts at any cost, as this motive is less offensive than the other possible motive raised by this case, i.e., that she was deliberately pandering to the television audience observing the proceedings on Court TV. See defense counsel's testimony at the hearing on appellants' motion for new trial ('I understand the cameras were rolling and everybody wants to be Nancy Grace's friend')."

"Even reversal will not work to alter the behavior of certain professionally challenged prosecutors aiming for a career elsewhere, such as on television."

The Smiths' trial was in 2007. So what become of this ethically challenged prosecutor? First, we'll have to discern her identity. Scathing as the Georgia Supreme Court opinions were, neither of them mentioned the prosecutor's name. Misbehaving prosecutors go unnamed in appeals court decisions, even in cases where their misconduct was egregious. In a 2009 U.C. Davis Law Review article (PDF), South Texas College of Law professor Adam Gershowitz suggests several reasons for such omissions, including a sense of professional camaraderie (reinforced by the fact that many appellate judges are former prosecutors) and simple compassion, sometimes based on the assumption that the incident in question was the prosecutor's first offense—an assumption that cannot reliably be tested by searching legal databases, precisely because so many courts omit the names of the prosecutors they criticize. Whatever the reasons, the failure of appellate courts to consistently call prosecutors out by name makes it more difficult for the public to hold them accountable when they seek re-election, start angling for a promotion to judge or run for higher office. It also makes it more difficult for journalists looking into misconduct in one case to see if courts have criticized a particular prosecutor in other cases.

I had to peek into the Google cache of Daily Report a subscription-only publication that covers Georgia's legal community, to get the prosecutor's name: She is Eleanor Odom, an assistant district attorney for Cobb County, Ga.

In its last two terms, the U.S. Supreme Court has heard two cases presenting an opportunity for it to carve out exceptions to the absolute immunity from civil lawsuits that prosecutors receive for their official actions, even in cases where they knowingly present false evidence resulting in the conviction of an innocent person. Those cases highlighted the perverse incentives prosecutors face: While they are under enormous pressure to win convictions, they bear almost no risk in going too far in the quest for a guilty verdict. An amicus brief (PDF) in last year's Supreme Court case Pottawattamie v. McGhee filed by the Cato Institute, the National Association of Criminal Defense Lawyers and the American Civil Liberties Union summarizes several studies showing that penalties for misconduct are vanishingly rare. This year USA Today and the Northern California Innocence Project published studies that came to similar conclusions.

The Georgia prosecutor who sang "Happy Birthday" to a child's ghost is no exception to the general lack of sanctions for misconduct. The Georgia Bar Association has taken no disciplinary action against Odom for her stunt in the Smith case, and she is still working for Cobb County District Attorney Pat Head. (Head's office did not respond to my request for an interview with Head or Odom.) While acknowledging to the Daily Report that Odom's behavior in the Smith case might have been a bit over the top, Head added that he has never known her to be the sort to grandstand for television.

"I have not seen her do that in the past," he said. "So there's no reason that she would do that in this case."

If Odom was showing off for the TV cameras during the Smith trial, it seems to have worked. In the three years since the Smith verdict, she has become a regular guest on Nancy Grace's CNN program. In her dissent in the Smith case, Chief Justice Hunstein said the possibility that a blind pursuit of convictions that motivated Odom is "less offensive" than the suggestion that Odom carried out the birthday cake stunt with an eye toward a possible television career. I'm not sure I agree. Last month Odom was one of 23 people who applied to replace retiring Georgia State Court Judge Albert L. Thompson. Next to the prospect of putting Odom behind the bench, where she would preside over the fates of people facing life sentences and the death penalty, putting her in a television studio doesn't seem like such a bad idea.

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