Temple of Justice Update: Using (and Abusing) Visual Aids

With the recent churn on the Court — the last five years have seen a new chief; the arrival of Justices Stephens, Wiggins, and Gonzalez; and Justice Chambers’ impending retirement — there is always plenty to cover.

Case Facts

In re Personal Restraint Petition of Glasmann, No. 84475-7, is a doozy. Edward Glasmann held quite the birthday celebration for himself in 2004. He and his fiancé rented a motel room, where they drank heavily and took methamphetamines and ecstasy. They started a brawl with each other that soon spilled out of their hotel room, into his car, and finished in a minimart. Subduing Glasmann required a stun gun. He still struggled, and the police stomped his head 5 times. His booking photo was grisly.

The State charged Glasmann with four crimes. At the close of his trial, the State presented a slide show to the jury. It contained pictures and videos from the night of the fight, and captioned them with phrases like “Do You Believe Him?” and “Why Should You Believe Anything He Says About the Assault?” Three slides in a row featured Glasmann’s savage booking photo with the word “Guilty” superimposed in red. The jury convicted Glasmann on all four counts.

Prosecutorial Misconduct

When the case reached the Washington State Supreme Court, Glasmann argued prosecutorial misconduct. (Watch the oral arguments on TVW). Chief Justice Madsen agreed, writing the lead opinion for herself and three others. In particular, she declared that superimposing inflammatory words over pictures “may well have affected the jurors’ feelings about the need to strictly observe legal principles and the care it must take in determining Glasmann’s guilt.” Also, prosecutors generally may not express personal opinions on guilt or innocence, since their position might have undue sway over a jury. The lead opinion determined that writing “Guilty” on Glasmann’s booking photo counted as the prosecutor’s personal expression of guilt.

But misconduct by itself is not enough to reverse a conviction. Because Glasmann failed to object to the slide show, the verdict could still stand if an instruction could have cured the misconduct. The State argued that an instruction could have sufficed; the lead opinion disagreed. The prosecutor’s actions were so “flagrant and ill intentioned,” the lead opinion held, that no instruction could have fixed them. The Court thus reversed Glasmann’s conviction.

Concurring Opinion

Justice Chambers concurred. He wrote separately, noting he was “stunned” that the State argued there was nothing improper about altering Glasmann’s photo “to look more like a wanted poster than properly admitted evidence.” Technology can be useful, Justice Chambers noted, but “should never be permitted to dazzle, confuse, or obfuscate the truth.”

Dissenting Opinion

Justice Wiggins dissented, joined by four others. They agreed that superimposing “Guilty” was misconduct. They disagreed, however, that the misconduct required reversing all four convictions. Glasmann’s lawyer on closing effectively admitted two of the counts. The evidence on a third was so overwhelming, the dissent claimed, that the jury surely would have convicted him, misconduct or not. The evidence on the fourth count was close enough to merit reversal, but the other three convictions should stand, according to the dissent.

Of note, although the Court was fractured on the result, it was unanimous that superimposing “Guilty” and other charged phrases on evidence was misconduct.

Attorney’s Takeaway

The takeaway for prosecutors is clear: keep visual aids straightforward and unaltered.

The takeaway for defense counsel is equally clear: object to inflammatory visual aids and other prosecutorial declarations of guilt.