Criminal Justice

Prosecutor's 'bizarre behavior' is cited in overturned conviction

An aggravated assault conviction must be overturned because of the “cumulative impact of the prosecutor’s transgressions”–including an “untoward incursion into the jury box,” a New Jersey appeals court has ruled.

The New Jersey Superior Court, Appellate Division, overturned the aggravated assault conviction of Geraldo Rivera because of assistant prosecutor Douglas Herring’s “bizarre behavior” in the jury box incident along with improper PowerPoint slides and statements at trial, the Bridgewater, New Jersey, Courier News reports at My CentralJersey.com. The opinion is here (PDF).

Rivera, 30, was convicted of aggravated assault but acquitted of attempted murder of two men in a September 2010 bar fight. Rivera had contended he took a knife out of his pocket to defend himself in a life-threatening attack by the men.

Among the problematic behavior cited by the appeals court:

• Herring climbed into the jury box during the defense lawyer’s cross examination of one of the alleged victims. At the time, Rivera was seated at the prosecution table helping his lawyer replay a recording of the alleged victim’s statement to police. It’s unclear why the recording was on the prosecutor’s table, but in any event the defendant had the judge’s permission to be seated there.

Herring said he climbed into the jury box because he was looking for a place where he could stand and write. The appeals court said Herring’s action was “at best, a distracting antic,” and it could have led jurors to conclude Herring was afraid of being too close to Rivera.

• During his opening and closing statements, Herring displayed a PowerPoint screen with the defendant’s photo and the words: “Guilty of: attempted murder.” A judge had allowed the PowerPoint presentation over the defense counsel’s objection, but had admonished jurors that an opening statement is not evidence.

• During his closing statement, Herring used PowerPoint slides of the law of self-defense that were “so oversimplified as to be misleading.” One of the slides had the caption, “Can’t bring a knife to a fist fight” and others superimposed the word “guilty” over a definition of attempted murder and other text.