The first time appellate judges reversed Richard Morgan’s convictions on burglary and other charges in 2010, they said a jury-selection mistake caused the reversal but chided a prosecutor for “objectionable remarks” during her closing argument.
At the retrial a year later, a jury again convicted Morgan.
Now, the appellate court has reversed Morgan’s convictions again – this time citing the closing argument from a different prosecutor who made some of the same comments the appellate judges objected to from the first trial.
“Despite our prior admonition on defendant’s first appeal, the prosecutor on retrial repeated some of the improper comments from the first summation and made additional comments that we conclude are improper,” the judges said in last week’s decision by the Appellate Division of State Supreme Court, sitting in Rochester.
So the appellate court has granted Morgan a third trial, and for a second time he has won a reprieve from a 20-years-to-life prison sentence.
The appellate court criticized Erie County Assistant District Attorney Mara McCabe for her summation, saying she denigrated the defense and defense lawyer Edward Earl Key “by repeatedly characterizing the defense as ‘noise,’ ‘nonsense’ and a ‘distraction,’ and arguing that defense counsel was fabricating facts and attempting to mislead the jury.”
The appellate court found that McCabe misstated evidence and the law and made an inappropriate guilt-by-association argument.
“Perhaps the prosecutor’s most egregious misconduct occurred when she made herself an unsworn witness and injected the integrity of the District Attorney’s Office into the case” and told the jury that her chief witness did not receive any benefit for her testimony, the appellate judges said.
Morgan, a Buffalo man with a lengthy criminal record, was first convicted in 2006 for a West Side break-in and for stealing some blank checks, DVDs, a laptop computer and a video game device and games.
The judge sentenced him to 20 years to life in prison after she found him to be a persistent felon.
When the appellate judges reversed the first conviction in 2010, they noted their “strong disapproval” of the summation by then-prosecutor Jaime Cirulli Gallagher, whom they criticized “for improperly shifting the burden of proof onto defendant and in improperly vouching for the credibility of the (prosecution) witnesses.”
In last week’s ruling, the appellate court took note of its previous decision.
“We conclude that reversal is warranted based on the pervasive and at times egregious misconduct on summation, particularly in light of our previous admonition” to prosecutors, the court said.
The appellate court cited this part of McCabe’s closing argument:
“Are you buying it?” she asked the jury. “Because that’s what they’re selling. Theories disguised as arguments and posturing as evidence. And I’m not suggesting the defendant has the burden of proving anything because the burden rests with the (prosecution).
“But by the same token, it doesn’t give counsel license to make stuff up and pretend that it’s evidence,” she told jurors. “They all have something in common. These theories: They’re noise, they’re nonsense. They want you to be distracted. Do not be distracted.”
Morgan, who is now 53, was convicted of second-degree burglary, third-degree grand larceny, a forged-check count and drug possession at his retrial for the Sept. 22, 2005, break-in on Bird Avenue.
Morgan, a former West Avenue resident who has a history of arrests in four states over the past four decades, was sentenced by State Supreme Court Justice Penny M. Wolfgang, who also presided at the first trial.
The appellate court, in its decision last week, dismissed the grand larceny charge because it found insufficient evidence that the value of the stolen property exceeded $3,000.
It also dismissed the drug possession charge because while it found the evidence legally sufficient to establish that Morgan possessed a controlled substance on Sept. 27, 2005, the date of his arrest, the indictment did not charge him with drug possession on that date.
The appellate court ordered a new trial on the burglary and forged-check counts.
Key told the New York Law Journal that he expects to represent Morgan at a third trial.
He called prosecutorial misconduct systemic in the Erie County District Attorney’s Office.
“It is the culture over there,” said Key, a former Niagara County prosecutor. “They think they wear the white hat and they can say or do anything they want. Some of the [assistant district attorneys] think it is a personal fight. It’s not. It’s about seeking justice. I am glad the Appellate Division is slapping them down a little bit.”
District Attorney Frank A. Sedita III said defense attorneys often allege prosecutorial misconduct in their appeals.
“It’s often alleged but rarely proven because we do our best to comply with the rules and regulations,” he said.
He said his staff could recall only two cases in five years in which the appellate court found such misconduct.
Sedita said Key “has demonstrated a history of false and outrageous comments.”
“I don’t put a lot of stock in what he says, but I do put a lot of stock in what the Appellate Division says,” Sedita said. “And I will take measures to make sure prosecutorial misconduct doesn’t happen again. I take the court’s admonition very seriously.”