- [Bailiff] The Honorable Justices
of the Supreme Court of the State of Alaska.
- [Chief Justice Carney] Good afternoon.
You may be seated.
- The Supreme Court is now in session.
- We are on the record in the case of James Seigle
versus the State of Alaska.
Ms. Jura, I understand you will be arguing
on behalf of Mr. Seigle,
and Mr. Soderstrom on behalf of the State.
Ms. Jura.
- [Counsel Jura] May it please the court.
My name is Emily Jura, and I represent the petitioner,
Mr. Seigle, in this matter.
Mr. Seigle was convicted after a trial where the
prosecutor engaged in multiple improper closing
arguments throughout her opening
and rebuttal summation.
The court of appeals found it to be a close call but
affirmed Mr. Seigle's convictions under a prejudice
standard that is higher than the standard
this court set in Hess v. State.
My plan today is to start by talking in more depth
about two of the improper arguments the
prosecutor engaged in.
Then I plan on talking about how the Court of Appeals
erred by using the cumulative error standard.
And finally, I will discuss why constitutional error
should apply and why reversal is required here.
The first improper argument I'd like to discuss is the
prosecutor adversely commenting on Mr. Seigle's
decision not to testify.
There's no dispute that constitutional error occurred
when the prosecutor said that S.N.
is the only person in the room that night that has to
testify, thereby naturally and necessarily bringing
up Mr. Seigle's decision not to testify,
not to tell the jury what happened,
thereby implicating his guilt.
Part of the state's burden in disproving harmlessness
with regards to this is proving harmlessness in the
context of the prosecutor's entire closing argument,
including the other improper arguments that were made,
including other adverse comments on Mr. Seigle's
decision not to testify,
or comments that at least amplified that harm.
"He didn't take that opportunity.
He never articulated that story.
You never heard from a single witness that took
the stand that that's what was going on."
Nobody asked Mr. Seigle about that.
You don't get to take defense counsel's word
and make that the defendant's word.
You have zero evidence to support that.
He didn't tell that to Detective Baker,
and you didn't hear anything about that throughout the
evidentiary portion of this trial.
By saying...
- [Justice Borghesan] But when it comes to zero
evidence, was that not a reference to, like,
a specific argument or theory
that defense counsel was making?
I mean, I think that's how the
court of appeals looked at it.
And zero evidence to support, you know,
a proposition or an argument or something specific
to happen seems like a fair game statement.
- Sure.
So, I think the zero evidence or no evidence is
probably at the further periphery of the problematic
comments that were made with
regards to adversely commenting.
I think saying that Mr. Seigle never said something and
nobody asked Mr. Seigle something necessarily brings
up that he didn't testify.
Obviously, the prosecutor could have.
It was completely fair game to comment
on what he said to the detective.
But by broadening that,
by including other instances that necessarily
implicated the right to testify, and then beyond that,
saying that you never heard from a witness that
said that, that, I think,
contravenes the rule established in Cold's Ferry by the
court of appeals that saying that evidence is
uncontradicted when only the defendant could have
provided that direct testimony violates the right to
not comment on the decision not to testify.
With regards to whether or not there's a fair response,
I think that the court of appeals was wrong in saying
that it's a fair response.
As I said...
I mean, of course, it's fair game,
and it's a fair response to say that Mr. Seigle didn't
say that to the detective.
It's fair game to say
that S.N. never said that.
It's fair game to say that it doesn't make sense.
It doesn't comport with your common sense.
It's not reasonable.
All of that is fair game.
But to go beyond that and to specifically bring up
Mr. Seigle never saying something or no witness ever
saying something, that's when it goes too far,
and that's the problem here.
And also, the comments about the defense attorney's
words are not Mr. Seigle's words is
very unfortunate, I think.
Certainly, you could say the defense counsel's
arguments are not evidence.
But the phrasing of that specifically in the context of
this closing argument, I think, is very problematic.
- Unfortunate and problematic aren't really legal
diagnoses that we use.
Do you want to play those out a little bit?
- Of course, yeah.
I mean, I think I have a little bit of flexibility in
the sense that because there is...
It's undisputed that there was a comment that violated
the right to remain silent,
that it's a prejudiced analysis, really.
We're looking at whether these other comments amplified
the harm from that or did not.
And so, I don't think this court needs to go so far as
to saying, you don't get to take the defense attorney's
words and make them Mr. Seigle's words.
Whether or not that violates the right to remain silent
directly, I think you can just say from a prejudice
context that amplified the harm.
But...
- I don't want to take you off track,
but do we need to be specific about what's an error and
what's not as we get into your argument about
cumulative prejudice or cumulative error?
You know, because we're talking about things,
some things may be errors,
some things may be unfortunate,
or maybe sort of fine in themselves,
but maybe accentuate an inference that could be drawn
from another comment.
But do we need to...?
Like, for example, when you're...
I flagged the statement zero evidence.
Like, do we need to decide whether that's an error or
not, you know, in the course of going through the
analysis you're suggesting?
- No, I don't think so.
Frankly, I think it could be as narrow and as
straightforward as saying there was indisputably a
comment that violated the right to remain silent.
And then there were other comments throughout the
closing argument that amplified the harm
from that remark.
And in the context of this case, it's a close case,
there's two conflicting accounts.
The physical evidence doesn't clearly cut in the
state's favor, all those things.
You could find reversible error based on that.
- Of course, like, any one of the errors could be
harmless or not harmless beyond a reasonable doubt.
But if we don't agree with you on that,
and then we have to get into a cumulative
prejudice analysis, does it matter?
Do we need to take every potentially problematic
statement and then say "error" or "no error"?
- I think that probably depends on how much
disagreement there is with the arguments I'm making.
I think there's a number
of improper categories of arguments.
And so, for instance,
if the court doesn't want to wade into when saying
something is a lie, it violates the plain error
standard, I don't think it needs to.
There's ample improper argument to go around, frankly.
And I think the core harms, from my perspective,
are common universally on the right to remain silent.
And then the comments about shifting the burden of
proof and the presumption of innocence.
So let me turn to those now.
- [Senior Justice Winfree] Well, before you do that,
I'd like to follow up a little bit
on Justice Borghesan's comment.
It seems to me that there are several different layers
of opportunity to determine whether other comments
amplify or are intertwined.
For example, the Court of Appeals determined that the
one comment was not adverse,
the one where it specified about the fact it didn't
have to testify or whatever it was,
that that wasn't really adverse.
But do we look at the entire context of the closing to
determine if that was adverse,
or do we look myopically at the specific statement
where the court said, "Well,
this is neutral and not adverse."
- Yes, of course, the court looks to the entire...
- So, we would look at the entire argument to determine
first whether something was error,
and then we would determine later, with a full context,
on whether something was prejudicial.
- Yes. Everything is interrelated
in terms of this analysis.
So, that's right.
- And are the comments about the express comments about
the right to not testify and the indirect comments
about the right not to testify?
Are they all intertwined in one?
- Yes.
- And are they also intertwined with
the burden of proof issues?
- Yes.
Absolutely.
- So, it would be one constitutional error?
- Yes.
I mean, the broadest umbrella, obviously,
is due process, because due process guarantees the
right to fair trial procedures,
and that includes closing argument.
And so, the more that these things are all knotted
together, the more it implicates due process.
With regards to the prosecutor's comments that shifted
the burden of proof and eroded the presumption
of innocence, "Your verdict never gets to be based for
the prosecution or against the prosecution
on suspicion or conjecture.
It has to be based on the evidence.
Don't fill in the blanks for either side.
You don't get to speculate,
and you don't get to fill in holes for the defense
or the prosecution.
Your verdict needs to be based on evidence,
not on suspicion, not on conjecture."
These comments were incorrect as a matter of law and
eroded both the state's burden of proof and the
defendant's presumption of innocence.
Juries do get to fill in the holes for the defense
because acquittals can be based on a lack of evidence
and because ambiguous or untested evidence should be
resolved in the defendant's favor.
And juries can rely on reasonable suspicion or
conjecture in determining that a
reasonable doubt exists.
Reasonableness is the defining characteristic of
reasonable doubt, not an evidentiary basis,
as the prosecutor's comments implied.
Mr. Seigle did not have to present direct evidence
that he had a fight with S.N. or that S.N.
injured herself after she left that night in order to
suggest these as plausible alternative explanations
that supported acquittal here.
And as Judge Borghesan noted and Judge Winfree just
pointed out, the prosecutor's comments worked in tandem
with her other comments on Mr. Seigle's failure to
testify by again reinforcing that the defendant had a
burden to present evidence,
including by his own testimony.
I'm happy to answer questions about
any of the other improper arguments.
Otherwise, I'll...
- [Justice Pate] Ms. Jura, I have a question.
You led off with saying that the court of appeals
didn't properly apply the law in Hess.
- Yes.
- Could you be more specific?
- Yes. I actually was just
about to turn to that.
In Hess vs. State, this court clarified that
the Adams plain error standard applies
to improper closing arguments.
Before that, the court of appeals was applying a
different standard, that the improper closing argument
had to be sufficiently central so as to rob
the trial of fundamental fairness.
So, in Hess, this court clarified
that that's not the standard.
If it's a non-constitutional error,
whether there's a reasonable probability that the
improper closing argument affected the verdict,
if it's a constitutional error,
whether the state can establish
that [inaudible] as well.
- And was it really clear in the opinion,
the court of appeals opinion in Seigle,
where they misapplied or they applied the wrong
standard, or was this kind of more
of an overall general feel?
- Well, I think...
I mean, they would have...
- They expressly state the wrong standard.
- They expressly state the wrong standard.
The cumulative error standard is expressly
a higher standard than the Adams planar.
- Wait a second.
So, you just said cumulative error.
- Yes.
- But isn't Hess about plain error?
- Hess is about plain error.
That's correct.
- Because those are two...
I mean, because we've got very little, I mean,
next to none, for the Alaska Supreme Court
on cumulative error, right?
- Right.
- So, again, how is Hess kind of understanding peeling
out cumulative error for later on,
which there might be some things that relate to it in
Hess, but not...
It doesn't state the standard.
Where did the court of appeals
go wrong in applying plain error?
- They went wrong in applying cumulative error because
there was a singular error that they were reviewing,
which was the improper closing argument and the trial
court's failure to intervene in light of it.
- But Hess doesn't talk about cumulative error, right?
- Cumulative error only applies if there are multiple
disparate errors throughout the course of the trial,
each of which is determined
to be individually harmless.
- Does Hess talk about cumulative error?
- Cumulative error wasn't at issue in Hess,
and cumulative error isn't at issue in Seigle's case,
is my position.
- Oh, it's not?
- Correct.
That's the error, is that the court of appeals viewed a
singular improper closing argument as a series
of disparate errors,
which it only reviewed in its totality under a
cumulative error standard,
which is a higher standard than is at issue in Adams
and the plain error standard.
So, I think that is perhaps
where we are not quite aligning.
- And you don't want...
Is this an all-or-nothing argument regarding...
I mean, what if we think that there's...
it does come down to cumulative error?
- My position is that Mr. Seigle should prevail.
And I briefed that as well.
I think Mr. Seigle should prevail under any standard.
But I think cumulative error is the wrong standards to
apply here, and I'm happy to discuss
why I think that is.
- Is that where you're going?
Because I'll ask you to do that if it wasn't.
- Yes, that is where I was going. Okay.
So, I think that cumulative error
is the wrong standard to apply here.
And I think probably the most straightforward reason
why that is is because,
in order to apply cumulative error,
you first have to make a determination that each
individual error is harmless.
In order to make a determination that each individual
error is harmless, even if we were to assume that each
category of improper remarks is a separate error,
you have to look at them in their context,
and that means that you have to look at the impact that
each improper category of argument has on each other.
And so, here the court of appeals individually
considered each category of improper argument,
and only in that lens did it
find each of them to be harmless.
That was never a true prejudice analysis to begin with.
You can't determine, as we were discussing earlier,
that the adverse comment on the right to remain silent
is harmless without considering the fact that the
prosecutor also disparaged the defense and made it
sound like S.N. had gone through
a terrible experience and that the other comments
shifted the burden of proof.
So, because that prejudice analysis,
that interrelated prejudice analysis, never occurred,
the court of appeals never determined
that they were individually harmless.
And I also think that just doesn't
work as a practical matter.
This is a singular trial event.
This is a trial event that we have a due process right
to a fair procedure in...
- The event being both the opening
closing and the closing closing?
- Correct. Yes.
It is a rhetorical appeal to
the jury by the prosecutor.
And the idea, I think,
of dissecting each improper statement or category
of statements into separate errors is not what
cumulative error is for.
Cumulative error is for too many photos of the deceased
gets in, and a 404B prior act comes in that shouldn't
have come in, and a witness, you know,
said that she thought he was guilty.
And they have no relationship to each other.
But there's been so many that the court goes and
considers whether the sort of residual probability
of prejudice that exists for each separate error when
sort of accumulated creates prejudice.
- Won't the argument always be that
they have a relationship with each other,
even if they're disparate errors?
I mean, you can...
You know, here we're talking about different
constitutional rights that are linked
through a closing argument.
You know, you just identified certain evidentiary,
hypothetical errors, then, you know,
other types of errors.
But ultimately, when the prosecutor is presenting a
case, they're tying all those things together.
The reason they're presenting certain pieces of
evidence is so they can make a comment later.
So, I feel like there always will be the argument that
these are interrelated because the case presumably is
supposed to be coherent.
And so, I feel like your argument is like every...
I thought that maybe you were trying to limit it,
but I think that maybe you're not.
Is this every single case?
No matter, like, how different the errors are
at different points in trial,
there should be a cumulative prejudice analysis.
- I think my position is that however many improper
closing remarks are made during a closing argument,
it's going to be one error.
Yes, that is my position.
But different errors occurring at different parts of
the trial based from different actors is always
going to be.
Does that answer your question?
- I think it does.
Why do we draw that line?
You know, if the idea is like, well,
in the closing argument, they're all related,
but different errors,
even if they're involving different actors,
trial actors will also be related in some sense.
So, like, what's the line that...?
happens, your argument to closing
argument as opposed to...
- I think that the easiest line,
the most intuitive way to approach it,
is can you in fact analyze these as individual errors
and fully and fairly assess the prejudice?
And if you can, then they're discrete errors.
If you can't, because they're so interrelated,
because one has an effect on the other,
then they're not discrete errors.
They're part of a singular error.
And that's the case here.
You cannot evaluate some of the prosecutor's closing
remarks without evaluating all of the
prosecutor's closing remarks.
And that's black letter law.
This court's case law has long recognized that you
consider improper closing arguments in the context
of the broader closing argument.
- And so, you would have a supply harmless beyond a
reasonable doubt, correct?
- Yes.
- And would you apply that to
only those two core constitutional issues?
- No, I would urge this court to apply constitutional
error to the totality of the improper remarks
that were made.
- And where does that come from?
Is that also in Hess, you think?
- It comes...
Due process guarantees fair trial procedures,
and that includes closing argument.
And there's case law from basically every court in the
country about how due process can be affected
by improper closing arguments.
I cited some of those in my brief.
- This is more like... in plain error,
the way it's typically done, there is an examination...
like, let's say there was a single issue,
a constitutional issue that's examined for plain error,
harmless beyond a reasonable doubt.
And we don't wrap in all the other non-constitutional
errors into that analysis, do we?
- I apologize.
I didn't follow your question.
- When you have both constitutional errors, like,
a single constitutional error comment on the right
to remain silent, and then
there's other non-constitutional errors,
when we're analyzing it under what I thought of as
traditional plain error standard,
we just look at that constitutional error, right?
And we don't factor in the non-constitutional errors,
at least at the plain error stage.
Not talking about cumulative, right?
- Sure.
So, if there is an error in that the prior bad act came
in and then there's an error in that too many photos
of the deceased came in,
those are two different errors.
That's true.
And you assess those separately.
- Okay.
And so, for plain error, again,
if there's a constitutional argument,
an improper constitutional argument,
and then there's arguments that are objectionable
but not constitutionally based,
you're saying we lump them all together and subject
them all to harmless beyond
a reasonable doubt standard.
Is that what you're saying?
- I'm not saying anything,
but every court who has ever dealt with improper
closing arguments has recognized that due process can
be implicated by an improper closing argument that
injects unfairness into the jury's
deliberations in the verdict.
- [Justice Oravec] That's the answer we get through by
applying the plain error standard, is fairness.
What he's asking is how do
we get to the fairness conclusion?
And our law says that if it's a constitutional error,
one party has the burden to prove
beyond a reasonable doubt.
If it's not a constitutional error,
someone else might have to do some work here.
So, in this case, you're kind of evading the question,
saying other courts care about due process.
Well, so do we.
And then to get to that answer,
you have to go through the rubric.
And I think Justice Pate has a good point,
which is how can we look at just one thing,
which our law says we do?
We look at the error.
Is it constitutional or not?
And yet you're arguing we kind of bootstrap all these
non-constitutional errors to get this beneficial
standard of proof.
- Sure. No, I don't mean
to avoid anybody's questions.
And I don't mean to be cute.
The reason why I said other courts is because other
courts have specifically talked about how due process
can be violated by an improper closing argument.
And I don't think that there is
an Alaska case that says that.
Certainly, this court did address that
in Hess that was raised.
This court didn't rule on it.
It specifically reserved that in its opinion.
But if there's any question about how this operates,
there are certainly cases in my briefing where the
courts go through that analysis.
One is Hughes versus State.
That was the Delaware Supreme Court.
The other is the case
involving the Kansas Supreme Court.
And that is Sherman, I believe.
Yeah, State versus Sherman.
So, if the court has any questions about how that
operates, those two courts cite federal case law that
says that improper closing arguments violate due
process or can implicate due process.
And that is what I'm relying on
here in support of my argument.
There isn't an Alaska case that I can cite because
I'm not aware of one that says that.
And frankly, I think that's problematic because due
process obviously attaches to Alaska
through the 14th Amendment.
- But we rejected the federal
approach in Adams, didn't we?
We say, not good enough for us.
- The Due Process clause.
Yes, we don't follow the federal approach in terms of
plain error, but the Due Process Clause of the federal
constitution obviously attaches,
as does the Alaska Constitution,
which affords broader protection.
And so, the fact that our people...
- This arch is becoming much larger.
- I know. I apologize for that.
I do not mean to make it so.
And like I said, I think this is a really
straightforward and simple case.
I don't know that this court needs to get to
the nuances of these issues,
but I do think that if this court views each improper
category of argument as a discrete error,
the straightforward,
simple solution is still to apply constitutional error.
Whether or not to apply cumulative
error is a policy choice.
And given the equities here, which is, first of all,
we know due process is implicated, is lurking
whenever there's multiple improper arguments.
We have the prosecutor injecting multiple
improper remarks into a closing argument.
And I think it's completely fair to assign
the burden of proof to the offending party.
This court has done that before in Bostock vs.
State, which is the case about mid-trial discovery.
When the state provides discovery at mid trial,
the burden is assigned to the state to disprove that
there's prejudice from that.
That is also, I think, just...
Sorry.
I think it puts the right incentives in place to deter
future improper closing arguments and to assign the
burden to the offending party.
And so, for all those reasons,
I think even if this court views each category
of improper remark as a separate error,
then constitutional error is still what this court
should assign and can use its
supervisory powers to do that.
In conclusion, I think Mr. Seigle
has established plain error.
The error here was obvious given
existing case law and ethical standards.
The record gives no indication
that the failure to object was tactical.
The improper remarks occurred at a critical time and
went to the heart of Mr. Seigle's defense,
jeopardized constitutional rights.
Thus, substantial rights are affected,
and the error was not harmless under whatever
standard is applied.
The jury heard two competing accounts.
Mr. Seigle made no admissions,
and the jury could have certainly credited that
Mr. Seigle initially misunderstood when he denied oral
sex, especially in light of S.N.'s own
credibility issues, and given that she testified to
things that were later established not to be true and
also minimized her own actions and
use of alcohol that night.
If there are no further questions, I'll sit down.
- And you have five minutes left if
you choose to come back later.
Mr. Soderstrom.
Before you start, I don't know if
you heard sort of faint drumming.
We seem to have afternoon drummers on the roof who are
fixing the fact that we have tarps and
buckets behind us.
So, I hope it's not a distraction.
- [Donald] Okay.
May it please the court and counsel.
My name is Donald Soderstrom.
I represent the State of Alaska.
As I acknowledged in my brief,
some of the prosecutor's comments here were improper.
But those comments did not amount to plain error,
either individually or together.
The question is how those comments
might have affected the jury.
So, we have to look at what else the jury considered.
There's, of course, the evidence that Mr. Seigle
sexually and physically assaulted S.N.
and that he had previously physically assaulted her
when she denied him oral sex.
They heard Mr. Seigle's statement to the police,
where he acknowledged engaging in oral sex
after initially denying it.
The jury was properly instructed on the law,
including the presumption of innocence,
the burden of proof beyond a reasonable doubt,
the right not to testify,
how to determine witness credibility,
and to disregard the arguments of counsel if they
depart from the facts or the law.
The jury was instructed on those both
before and after the closing argument.
The jury also heard from Mr. Seigle's attorney,
who talked about many of those same concepts.
And in my brief, I point out that occasionally the
defense attorney also went too far in his own comments.
That's not to say that two wrongs make a right.
That's simply to say that we have to consider
everything that the jury heard to determine what
effect this had.
So, the court of appeals considered all of this and
found that several of the comments were improper,
and some were at least potentially problematic,
which is not necessarily the same thing as saying that
they were error.
But the court noted that the vast majority of the
hour-long argument was proper.
It was grounded in the evidence.
And the court concluded that ultimately those comments,
even put together, did not deprive the defendant
of a fair trial.
So, I think that it is important that this court say
what was and was not error.
This court should be very clear, as clear as possible,
the basis for its decision,
saying what the prosecutor can do,
what the prosecutor cannot do.
So, attorneys do need to follow the rules,
including the rules about closing argument.
But attorneys are not perfect.
We make mistakes, we misspeak,
and we use poor word choice, and we are...
- But making unconstitutional arguments is a little
more than an oversight, is it not?
- Well, in this case,
the comment on the right not to testify...
- The repeated comments relating to that.
- Repeated relating to that.
There's one comment where the prosecutor said and he
hasn't testified and he doesn't have to and you can't
hold that against him.
So, there, it looks like the prosecutor just
accidentally misspoke and then realized it and...
- Or at least attempted to correct it.
- Attempted to correct the error just as the judge
would have done if there had been an objection.
The other comment was very similar to the comment in
Goldsberry that this court found was harmless
beyond a reasonable doubt.
It was indirect.
The point of that error,
that comment was that S.N., the victim,
did come in and testify,
and here's why you should believe her.
And the problem is only that there were two people
there and only one of them testified,
which indirectly comments on the right not to testify.
- You agree that that's error, correct?
- Under Goldsberry, that is error.
Goldsberry did not come out until
after the trial in this case.
So, it was not...
- That doesn't matter, does it?
- I think it does matter.
- Get back to the states' continuing argument that
hypothetically it might have been okay because there
was some precedent to support it and reasonable judges
could differ on how it might resolve as opposed to what
we said in later cases that we look back
retrospectively and determine whether or not that
was an error.
- So, in Johnson, this court said that we can look back
and determine error at the time of the appeal rather
than the time of trial.
In the reply brief, Mr. Seigle
also referred to Henderson v. United States,
the U.S. Supreme Court decision.
And of course, it said that the fact that there was no
objection still weighs in the analysis.
Justice Scalia there made, I think, a good point.
He was in the dissent,
but he made a good point that when there is no law
clearly against or clearly for the defendant,
that's really when the trial judge most needs the
assistance of counsel to object and say...
- That may be true.
But we haven't accepted that analysis, have we?
- No.
- That is not our case law.
- That is not this court's case law.
- So, let's stick with our case law.
It was error.
- It was error, yes.
- And it was actually more than once, wasn't it?
It was twice.
- It was twice.
The first one under, or the one under...
was similar to Goldsberry.
So, alone, at least that would be harmless beyond a
reasonable doubt for the same reasons as in Goldsberry.
- There were two times they did the only witness at
page 715 of the transcript at the very beginning of the
DA's opening, made the same comments.
She's the only one that's going to know.
She's going to tell you exactly what happened,
blow to blow.
And then later on at the beginning of the rebuttal is
the one that the court of appeals says, "Oh, yeah,
that was wrong, but it was isolated."
And it wasn't because there were two.
And it was brief, but it wasn't really brief if you
take into account some of these other comments
that Ms. Jura has mentioned about the burden of
proof and no evidence, no evidence, no evidence.
So, I'm troubled by the court of appeals',
pretty brusque review of that.
- Well, I don't know about brusque.
They did, I think, look at everything that was raised.
As you said, okay, there were two.
And two similar comments.
Each comment itself was brief,
but there were two comments.
I understand that.
But still, it was...
- Is two enough not to be isolated?
- I mean, that's what we're here
to figure out, I guess.
But I'm arguing yes, in light of the,
the jury instructions,
in light of the defense attorneys asking the jury
and voir dire bringing this up himself,
are you going to hold it against
the defendant if he doesn't testify?
This was something that was dealt with
in the instructions before and after.
So, I think that viewing those two,
just that one, the right not to testify,
even those two separate related incidents
would still be harmless beyond a reasonable doubt.
Just looking at that right being at issue,
separate from the cumulative error,
cumulative prejudice,
or whether we combine multiple different types
into a single error.
- Let me back you up just a second.
Defense attorneys often kind of forewarn the jury,
"My client's not going to testify," correct?
- Yes.
- So, are you implying that somehow the state
gets to respond to that by these comments?
- No.
- Like, he didn't testify.
- No. That does not give the state a license
to make that type of testimony.
But that type of a warning, that type of a comment,
I think can enter into the analysis,
at least on harmlessness.
So, it's not something that if just because the defense
attorney says this, then the prosecutor gets
to do this.
But on the back end, where we are now,
the court needs to look at the entire record,
including the defense attorney's own comments
on the right not to testify.
- So, if that's all the defense attorney says,
"Hi. I'm defense attorney. This is my client.
You're not going to hear from him."
Then somewhere along the line,
if there are these passing comments by the prosecution,
whether through the trial or in a short closing or long
closing, well, you didn't hear from him.
That somehow makes it less likely to be harmful?
- Yes.
It's still improper for the prosecutor to do so,
but the court would still need to review the
entire record, including those comments.
And given, you know, the record in any particular case,
this court might find harmless error, it might not.
But that still is something to consider.
- Counsel, I think that you agree,
just based on what you said,
that when there's constitutional errors in a closing
argument, improper comments by a prosecutor that touch
on constitutional concerns,
that you group those together.
Like, if there's only one comment,
improper comment regarding the defendant's right
to remain silent, you consider that.
If there's two of them, you consider them together,
right, when you're doing plain error, right?
- I think in my mind and in my brief,
I did not consider those to be totally separate.
So, I think those can be grouped together.
Two comments affecting the right to not testify.
- It would make sense because that's what we talk about
and Goldsbury in other cases,
about whether they're isolated or not, right?
So, you want to consider them together.
So, it seems pretty clear that we consider errors of a
type, like the right to remain silent, in aggregation.
Why shouldn't we, in closing argument,
limiting this to closing argument,
limiting this to plain error,
why shouldn't we consider constitutional errors
of different sorts?
Is there a policy reason,
or is there a practical reason, that we shouldn't say,
take a comment that was improper regarding a right to
remain silent and a comment that was improper
regarding the burden of proof?
Why do we have to hold those separate?
Why shouldn't we consider them together in an analysis
if we consider multiple violations of the same sort?
I realize they're different sorts,
but I'm asking you to address that.
- Well, I think for each constitutional error,
the State, under Adams, does have the burden to prove
harmlessness beyond a reasonable doubt.
The State would have the burden
as to each of the errors.
And again, as I've said,
the court does need to look at the entire record.
So, I think the court inevitably will consider,
if it finds two different violations or violations
concerning two different rights,
it will take that into consideration.
- At what stage?
At the plain error stage or the cumulative error?
It would be...
- I'm not entirely certain I understand the distinction
that the counsel is trying to make between the plain
error and cumulative error stages.
- So at plain error,
harmless beyond a reasonable doubt applies, right?
That's what we're talking about,
if it's a constitutional infraction or
improper comment, right?
- Yes.
- Okay.
And so, if we have a case where there's multiple
improper comments on the right to remain silent,
we consider those in the aggregate under the plain
error, harmless beyond a reasonable doubt, correct?
- Yes, if I understand.
- Okay.
In a way, we're actually doing some cumulative error
analysis on multiple violations of the
same constitutional right.
My question is, which this case presents
potentially is why don't we...?
What's wrong with us then saying,
considering a violation of the right to remain silent
and a violation of the burden of proof, or,
you know, presumption of innocence,
combining those at the plain error stage,
considering them together with harmless beyond a
reasonable doubt standard applied?
- Well, I think you only...
the court should only reach the cumulative error
question if it decides that both individually were
harmless beyond a reasonable doubt.
You only reach cumulative error if there are multiple
errors, none of which is prejudicial on its own.
So, I think that the cumulative error is where you
would potentially combine those multiple errors.
- But aren't we already doing a little bit of
cumulative error analysis if they're of the same type,
even though they're separate, distinct...?
Like, one's in opening...the beginning of the closing,
one's in rebuttal, and we jam them together,
we do a cumulative analysis, aren't we?
- In a sense, yes.
The similar types.
The same type of error is involved.
I think my point is that I'm more concerned about the
idea of taking multiple non-constitutional errors,
multiple small errors together,
and then combining them into one constitutional error.
That's my bigger concern.
- Well, I'm asking you to focus on the narrower one,
because here that would be the right to remain silent.
And then the burden of proof.
Do they get to do a one-two
under harmless error, you know.
- Under...
Trying to formulate my answer.
As I've said, the court does get
to look at the entire record.
And if the court finds multiple errors
that each individually are harmless,
then I think ultimately the question
for the appellate court is...
I think you alluded to this.
The ultimate question is, was there a fair trial,
and was the trial so unfair that despite the absence
of a timely objection,
when the trial judge could have done something,
could have potentially fixed this,
the court has talked about the standard in different
ways in different cases,
but would it perpetuate manifest injustice?
Is it so prejudicial that we need to protect the
integrity of the judicial system?
These are obviously not verbatim,
but I think this court has given different descriptions
in Adams and Hess and Charles and Johnson that I think
all go towards the same point.
But ultimately, plain error is asking if once you find
an error or multiple errors,
was the trial so unfair that despite the absence of an
objection, that the appellate court needs
to take action?
- But in a, I mean...
And I don't want to belabor the point,
and you can disagree with the premises in my question,
but, you know, I think in Adams,
it's not quite so deferential.
I mean, for constitutional errors, you know,
the state has to show it's harmless
beyond a reasonable doubt.
And maybe I'm asking the same question or somewhat
differently from Justice Pate.
But even if we stick to analyzing one type of
constitutional error, like, let's stick with, you know,
comment on the right to remain silent, you know,
when you're doing harmless error analysis,
you're looking at prejudice,
and do we limit ourselves to the prejudice only
of that one, or do we look at the prejudice of that
comment on the right to remain silent by taking account
of other comments that may have been error that
violated different rights?
I think, like, if it's the second,
then we kind of are lumping errors together
in the prejudice analysis.
- I think, yes, and I think that the court has done
this, or this court or the court of appeals has
done this before.
Looking at, for example, I think in Rossiter,
the Court of Appeals noted there were some comments
that denigrated the defense.
There were other comments that misstated the law of
self-defense, and it didn't necessarily distinguish
that one or the other was prejudicial.
But at least together,
the court did find that those together were.
As I said, my bigger concern is the idea of taking
multiple small errors and turning them into one big
constitutional error,
which then would change the analysis under Adams,
shift the burden.
And I tried to get into this a little bit in my brief,
but we're in a plain error posture because there was
an improper comment, first of all,
and then because there was no objection.
And then plain error says that,
under certain circumstances,
the trial judge was supposed to step in sua sponte.
And so, I think a trial judge could ask,
"Where is that point that I have to step in?
How big does the error have to be?"
Or especially if we're going to combine multiple small
errors, at what point does the trial judge need to take
action or risk a reversal on appeal?
Because every small error is another opportunity for...
Well, it is another error,
but it is another opportunity for an objection,
another opportunity for the trial judge to step in.
- Right, but you're implying,
by referring to small errors,
that there are some small ones,
but there are some bigger ones, right?
And wouldn't constitutional ones by
definition not be so small?
- Constitutional errors, this court has stated,
always affect substantial rights.
So, they are going to be bigger in that sense.
Constitutional errors do vary in size or degree,
even in the same when the same right is at stake,
the right not to testify.
There's the difference between an indirect comment
compared to saying an innocent person would
have testified, and he didn't testify,
and that's why you should convict him.
That would be an extreme example.
So, it is a matter of degree as well.
Constitutional rights also can be waived or forfeited,
just as non-constitutional rights can as well.
But there is a duty to object for small errors as well
as big errors.
But if small errors can all be combined together,
then I think that there would be more plain
error arguments, and plain error would start to look
more like just error on appeal.
- Well, isn't sticking sort of with the small error a
bigger error thing?
Did Ms. Jura's examples that she gave us about
a bunch of separate harmless errors that might add
up to cumulative prejudice?
Those were not constitutional, really.
Like, too many pictures,
those sort of evidentiary things,
at some level they play out to a constitutional issue,
but discreetly themselves.
They're a bunch of small errors.
But if there are constitutional errors which aren't
that small, doesn't that trigger attention from the
court a whole lot sooner than the second or third or
fifth or ninth evidentiary issue about that picture the
gun shouldn't have come in or that article of clothing?
- A constitutional error should be a red flag to the
court as well as to counsel.
That seems like it should certainly trigger a trial
judge's duty to step in for a bigger,
more obvious error like that.
Although that's kind of the paradox of plain error
review is that you would expect the bigger error,
the more likely there is to be an objection.
But that's the paradox.
- An obvious error.
- Isn't the test, though,
that the error must affect a substantial right,
and the split becomes it's constitutional and it's
something that's meaty?
So, we're not talking about little onesie twosies,
they called me Joe and my name is John kind of errors.
We're talking about something that affects a
substantial right that's not quite constitutional,
but it's got meat on the bones.
So, isn't your fear of, like,
someone coming in and complaining about bad grammar and
a closing argument is going to rise to the level of a
plain error review?
That's not really what we're talking about when we talk
about plain error.
- Well, it's difficult to say other than this court has
said that a constitutional error will always affect
substantial rights under Adams,
but it's difficult to say what other non-constitutional
rights will be viewed as substantial because of
non-constitutional rights, evidentiary rulings.
There are a lot of things...
- Vouching for a witness per chance?
- There are a lot of things that are not constitutional
in nature, but they certainly can be prejudicial
given the circumstances
of a particular case. So...
- So, if a prosecutor vouched for a witness in a
closing argument, let's just assume for argument,
that happened, would that be potentially affecting a
substantial right giving rise to plain error review?
- I think, potentially, as the court has said,
that giving a personal opinion, vouching for a witness,
suggesting that you have additional knowledge that the
jury doesn't have, that could potentially affect a
substantial right, if not a constitutional right.
But I think you would have to then distinguish.
Perhaps the substantial right prong
of Adams has been met.
But is that constitutional for
the prejudice prong of Adams?
- Well, the prejudice prong becomes one person.
You know, one side's going to have the burden of proof,
or the other side has the burden of persuasion, right?
So, like in this case,
if we had vouching for a witness in the
closing argument, that wouldn't give rise to a
constitutional claim, it's a substantial right.
And so, then it would be the defendant that would have
to show that it was prejudicial.
But if it is a constitutional question,
it's on the state, and prejudice is presumed unless you
can prove beyond a reasonable doubt.
So, my question is, in this case,
what is the proof beyond a reasonable doubt that the
constitutional errors that we're talking
about were not prejudicial?
Because it can't just be while we gave jury
instructions, because this is a closing argument,
and jury instructions don't necessarily mitigate those
types of errors in closing.
- I disagree with that.
I think jury instructions, they come from the court.
- But they're not unique.
They're in every single case.
- They're in every single case.
In this case, they came
directly after the rebuttal argument.
The jury instructions go back to the deliberation room
with the jury.
The closing arguments are just
what the jurors remember.
Those don't go back.
And in this case, of course,
we have the acquittal on one count that helps to show
harmlessness beyond a reasonable doubt.
It shows that the jury was instructed to consider each
count separately, and that's what they did.
The prosecutor also told the jury,
if you don't believe S.N., then acquit.
Shows that the jury was not so inflamed by these
arguments that they abandoned their oath,
abandoned the jury instructions given
to them by the court.
It shows that they did consider the evidence,
consider the instructions from the court,
and they weighed the different evidence as it related
to the different counts.
And here there was different
evidence related to the counts.
Of course, the physical assault was conceded in the
opening statement and was not contested.
I don't think the defense attorney mentioned it at all
in his own closing.
But there was different evidence on the sexual assault
count for which the jury convicted and
for which they acquitted.
The oral sex count was
corroborated by Mr. Seigle's own statement.
He admitted that this act happened.
The 404[b] evidence showed that
he was aware that S.N. did not like oral sex.
So, it showed that he recklessly disregarded her lack
of consent, that she did not consent,
and that he recklessly disregarded
that lack of consent.
And when you combine that with the physical assault
there in the apartment,
or the defense attorney said without evidence that it
happened as she was leaving, somehow,
you have a physical assault,
so you have actual force that left bruises in that
same time frame.
And both of them agreed that this was just a matter of
minutes that she was over there.
- So, I'm sorry.
I'm just confused how proving that you got a conviction
and there's evidence to support the conviction proves
that there was no prejudice,
that these other constitutional rights were violated
in the closing.
- Well, to analyze harmlessness, generally,
what courts do, I mean, you look at the evidence,
and you look at what was in dispute.
The way that the case was litigated by both parties and
the way that this case was litigated was to concede
that there was a physical assault.
The defense attorney also conceded there
was at least sexual contact.
So, what it really came down to was whether there was
lack of consent and a reckless disregard for the lack
of consent that on the non-conceded conviction,
those were the issues that the jury ultimately
needed to decide.
And so, you look at the evidence of that,
you look at the fact that there was force used
during this incident that left her with bruises,
and that's where you come.
And the 404[b] evidence showed that Mr. Seigle becomes
violent when he asks for oral sex and
doesn't receive it.
So all of that, plus the fact that the jury was not so
swayed by the prosecutor's arguments that they just
convicted of everything that they did
parse out the different charges.
That together is why this was harmless beyond a
reasonable doubt under the facts of this case.
- Didn't he deny use of force
in his meeting with Officer Barker?
- He did deny that any force was used,
or he certainly never admitted.
He never admitted an assault, but his attorney did.
His attorney, in the opening statement...
So, right from the start of trial, the attorney...
- I was talking about throwing her out of the house,
though he wasn't...
- I don't think that he said that he threw her out.
I don't think he used any sort of violent language when
he said that she left.
I think it was just they wanted to do different things.
And so, he gave her $20, and she left.
I think that was his story to the officer.
- Thank you.
- We've carried you a little bit over your time.
So, take a moment and wrap up.
- Ultimately, this court...
- Unless we have more questions,
but I don't see anybody leaping to ask you anything.
- Ultimately, this court needs to consider the entire
record and determine whether the comments at issue
deprived Mr. Seigle of a fundamentally fair trial,
keeping in mind the lack of a timely objection where
the trial judge could have taken action.
And Mr. Seigle...
- That makes me ask another question.
- I should have sat down.
- We looked, and you say, "Look at the entire record."
And I had asked Ms. Jura, do we look at the entire
closing to determine the nature of a specific
comment in the closing?
And particularly I was focused on the court of appeals
determination that at least one of,
and I count that there were two different times that
the prosecutor mentioned not testifying expressly
as opposed to indirectly, the right to silence,
and the court found or determined that it was not
adverse because it was just looking at it and it was a
neutral comment according to the court of appeals
that said, "Well, you know, he's not testifying,
but he doesn't have to and you can't hold
that against him."
Something along those lines that that was a neutral
statement and therefore not even an error.
And I'm wondering, do we look at the entire closing to
determine whether the court of appeals was correct,
if there may be other things that were said during
closing that would make it fairly clear that it was
adverse or maybe not.
But do we look, or do we myopically look at that two
sentences that were made in closing and say, "Gee,
that all by itself is just facially neutral and
therefore not adverse."
Can we look at other stuff to determine that in the
context of all of the statements that are relevant
to this, it really was adverse?
- Well, I'm arguing, of course,
that you have to look at the entire record to determine
lack of error.
So, I think that the court also can look at the entire
record to determine, of course,
the effect of the errors and whether the different...
- This is not the effect of the errors.
This is whether it was an error at all.
- Okay.
Whether a particular comment is an error,
I think you need to then view the comment by itself and
in the immediate context,
I certainly try to do that in my brief
by including the entire paragraph.
For example, what is the context of the specific
argument, what immediately preceded it,
what immediately followed it.
That would be at least the starting point.
And I think potentially, yes,
if you can potentially look at other similar comments
to see the theme there to determine whether any
particular comment was error.
- So, that sounds like the context is the whole closing
potentially, at least?
- Potentially.
Thank you.
- You may sit down quickly before
we ask any more questions.
Ms. Jura.
- Thank you.
I don't have anything major, but I have some time.
So, I'll talk a little bit.
I think that the cumulative error analysis has never
been a problem before.
And it is a little bit like when you start thinking
about how you breathe and you start getting worried
about how you breathed,
even though it's something that
just happens automatically.
The Court of Appeals has always applied plain error in
terms of looking at all the errors together.
I cited the cases Ledbetter and Rosseter are two recent
examples of them doing that.
This is the first time I'm aware of that the Court of
Appeals has ever applied cumulative error
to an improper closing argument.
And this is not the first time that multiple improper
categories of closing argument have occurred.
The Court of Appeals didn't explain the why they
applied cumulative error other than to say that
Mr. Seigle had raised that claim.
But Mr. Seigle did not raise a cumulative error claim.
So, it really appears to be sort of a comedy of errors
that we got down this track.
I don't think it applies.
It's difficult to try to apply cumulative error.
It's not intuitive.
And as the state just acknowledged,
these things are all interrelated.
The other comment I just wanted to make is this court,
in Adams v.
State, dropped a footnote saying trial courts should
intervene when they hear improper closing arguments and
gave a directive about sort of if they have a concern
that maybe the defense attorney is not objecting
for tactical reasons,
they should make that clear on the record.
Trial courts are listening, and they are doing that.
I have a case on appeal right now.
It's State versus Christensen,
and I can certainly drop a supplemental authority if
they need that, where there was an improper closing
argument, there was no objection.
The trial court raised that after
the prosecutor was done speaking.
So out of the presence of the jury.
The defense attorney waived the improper closing
arguments, and said I want to handle them on my own.
And so, that takes care of the issue completely.
Trial courts are doing that...
- Even if we bury it in a footnote?
- Wherever the court wants to put it,
I think would be helpful.
Trial courts, of course,
pay careful attention to this court's decisions.
And I think that is to the betterment of all to have
the trial courts be proactive in closing arguments.
And there are a variety of ways to handle it when
errors or when improper comments, big
or small, are made.
But trial courts are there.
They're in the best position to take action there.
So, we should continue to encourage them to do so.
I don't have anything else...
- Would you address the concession or non-concession of
the assault charge?
- Sure.
There was a concession in
the opening statement, I agree.
I don't read the closing argument as conceding the
assault for charge anymore.
And I think that's significant because the opening
statement, the evidence hasn't come in yet.
It's a forecast of sort of
what's going to be happening.
But by closing argument,
that's when you're addressing the evidence that
came in, what the jury should do.
And at that point, the defense
attorney was no longer conceding that.
So, I don't think that that should be held against
Mr. Seigle in terms of the prejudice analysis.
In terms of the evidence,
I think it's similar to the evidence
of the sexual assault.
And in particular, there was a bouncer who testified
that he saw S.N.
that night on her way to the next bar where the police
were called, and he interacted with her,
and he did not observe any injury to her face,
which I think really gives some evidence and
support that S.N., was not injured
by a Mr. Seigle but was injured later.
- So, in a later proceeding in the sentencing,
Mr. Seigle wrote to the judge or judges and to give
the defendant's statement.
This is in the record at 581.
It's not in the excerpts.
But Mr. Seigle writes,
"I accept all circumstances of punishment regarding the
fourth-degree assault/do not contest.
What does that mean for purposes of this discussion of
whether he conceded or did not concede
the assault charge?
- It doesn't mean anything.
For the prejudice analysis, obviously,
that is focused on the evidence at trial.
Certainly Mr. Seigle will have the ability to plead no
contest if he wants to on remand if this court reverses
on those convictions.
Thank you.
- With that, we thank you both for your arguments and
your briefs in this unusual and interesting case.
As you know, we will take this under advisement.
We will issue a written opinion at some later date.
And we are now adjourned.
Thank you.