¶81      …

[F]or a prosecutor's comment to constitute an improper reference to a defendant's failure to testify, three factors must be present: (1) the comment must constitute a reference to the defendant's failure to testify; (2) the comment must propose that the failure to testify demonstrates guilt; and (3) the comment must not be a fair response to a defense argument.

State v. Jaimes, 2006 WI App 93, ¶21, 292 Wis. 2d 656, 715 N.W.2d 669 (citing Robinson, 485 U.S. at 34).

…

¶92      We have previously declined to establish a bright-line test as to "whether a prosecutorial comment crosses over 'into the forbidden area of comment on an accused's failure to testify' and 'violates constitutional rights,'" State v. Moeck, 2005 WI 57, ¶74, 280 Wis. 2d 277, 695 N.W.2d 783(citing State v. Edwardsen, 146 Wis. 2d 198, 215, 430 N.W.2d 604 (Ct. App. 1988)). Instead, such determinations must be made on a case-by-case basis. Moeck, 280 Wis. 2d 277, ¶74.

¶93      The court of appeals has adopted the approach taken by the Third Circuit that "[t]he test for determining whether remarks are directed to a defendant's failure to testify is 'whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.' Questions about the absence of facts in the record need not be taken as a comment on a defendant's failure to testify." State v. Johnson, 121 Wis. 2d 237, 246, 358 N.W.2d 824 (Ct. App. 1984)(citations omitted). Applying this test, the court of appeals has ruled that by presenting a limited reply to a defendant's claim during a pro se trial that the state was unable to prove its case, the prosecutor did not improperly comment on the defendant's failure to testify. Id.; See also State v. Werlein, 136 Wis. 2d 445, 457, 401 N.W.2d 848 (Ct. App. 1987)([T]he prosecutor's comments were made in rebuttal to defense counsel's suggestion that these were legitimate explanations for the events leading to the shooting.").

¶94      Thus, where Doss's attorney argued that Doss's behavior in depositing the estate funds showed nothing but good motives, it is not clear that the prosecutor's statements about the absence of facts in the record should be taken as a comment on Doss's failure to testify, particularly where there was no direct reference to Doss's failure to testify. This is the type of case that straddles a fine line between permissible and impermissible commentary by the State. The U.S. Supreme Court has recognized that a prosecutor's statement that falls short of a direct statement on a defendant's failure to testify, but instead "'refers to testimony as uncontradicted where the defendant has elected not to testify and when he is the only person able to dispute the testimony,'" is at most an attenuated violation of Griffin v. California, 380 U.S. 609 (1965), and Robinson, 485 U.S. at 34, and may not actually constitute a violation at all. United States v. Hasting, 461 U.S. 499, 503, 506 & n.4 (1983). Therefore, Doss has not established that her counsel's failure to object was deficient performance. See Johnson, 133 Wis. 2d at 217; Strickland, 466 U.S. at 688.

¶30      The prosecutor, during closing argument, identified the defendant as a "chronic alcoholic":

This is a trial that is a search for truth. The truth of the matter is that Mr. Jorgensen is a chronic alcoholic. I don't know if we're ever going to get him to believe that, but that's the truth. The truth of the matter is Mr. Jorgensen drove to court that day and he was drunk, and it was very foolish thing for him to do. . . .

¶31      This commentary was improper. First, it is inappropriate for an attorney to allude to a matter not supported by admissible evidence. See SCR 20:3.4(e); State v. Freiberg, 35 Wis.  2d 480, 484, 151 N.W.2d 1 (1967) (stating that alcoholism is a disease that should be proven by expert medical opinion). Second, it is improper for a prosecutor to provide the jury with information, which allows the jury to consider facts not in evidence when determining guilt. See State v. Smith, 2003 WI App 234, ¶23, 268 Wis.  2d 138, 671 N.W.2d 854. Third, while the statement is not evidence because it was stated during closing arguments, it is still useful to assert that labeling Jorgensen a "chronic alcoholic" is not relevant, and it is highly prejudicial. See Wis. Stat. §§ 904.01 and 904.03. Fourth, the context in which the "chronic alcoholic" comment arose comes dangerously close to asking the jury to convict Jorgensen of OWI because he is an alcoholic who may not acknowledge that he has a problem. See generally Robinson v. California, 370 U.S. 660, 666 (1962) (rendering a statute unconstitutional because it punished the status of having a narcotics addiction rather than the act of manufacturing, selling, purchasing, or possessing narcotics).

¶1    This is a case where it is claimed that the prosecutor struck a foul blow during closing arguments when she told the jury that the defendant, Robert H. Weiss, Jr., never denied committing the offense until he took the witness stand when, in fact, she had possession of two police reports showing that he did immediately deny it. Berger v. United States, 295 U.S. 78, 88 (1935), holds that, while the prosecutor may strike hard blows during closing arguments, the prosecutor’s duty is to refrain from using improper methods. We hold that the prosecutor’s argument stepped over the line and is not harmless. We reverse and remand with directions that Weiss be tried anew.

¶15      … In fact, her complete argument on the subject was that, other than a formal plea of not guilty, Weiss had never denied the crime until he got on the witness stand. She knew better. She had the two police reports saying otherwise. We hold that the facts here comport with the situations in Toney and Kirby. We point out once more, because this is important: the State concedes that the prosecutor’s argument, asserting that Weiss never denied the crime, implicitly including verbal denials, was incorrect. The importance of what we are about to say cannot be underscored enough. Prosecutors may not ask jurors to draw inferences that they know or should know are not true. That is what occurred here and it is improper.

¶44      We do not agree with Cockrell that the prosecutor was asking the jury to draw an adverse inference from his failure to call Jones as a witness. The prosecutor was asking the jury to draw an adverse inference from her failure to appear in response to the State’s subpoena. We see nothing improper in this argument and conclude the circuit court’s overruling of the objection was not a misuse of discretion. ^[14]

We are disturbed by Reddin’s presumption to give, and Judge Murray’s acquiescence to receive, Reddin’s ex parte advice about the scope of Hipp’s ability to have issued subpoenas for the production of his witnesses at the John Doe hearing, and we remind the bench and the bar of SCR 60.04(1)(g) (“A judge may not initiate, permit, engage in or consider ex parte communications concerning a pending or impending action or proceeding” other than in carefully delineated circumstances.), and SCR 20:3.5 (“A lawyer shall not: … (b) communicate ex parte with [a judge] except as permitted by law or for scheduling purposes if permitted by the court.”). See also State v. Washington, 83 Wis. 2d 808, 824–825, 266 N.W.2d 597, 605 (1978). The Rules of Professional Conduct were amended, effective July 1, 2007, by S. Ct. Order 04-07, 2007 WI 4. Supreme Court Rule 20:3.5(b) is unchanged. The new Rules of Professional Conduct may be accessed at: http://www.legis.state.wi.us/rsb/scr/5200.pdf.

¶15 Hipp also seeks an order removing Judge Murray as his John Doe judge, and Reddin from further participation. We have no doubt but that Judge Murray will on remand fulfill his responsibilities as an impartial magistrate. See State v. Washington, 83 Wis. 2d 808, 824, 266 N.W.2d 597, 605 (1978). [5] We express no opinion whether Hipp may, on remand, seek relief under either Wis. Stat. §§ 801.58(7) or 971.20(7), the substitution-of-judge statutes in civil and criminal cases, as that issue has not been presented or briefed. We also decline to interfere with the authority of the Milwaukee County district attorney to assign his deputies and assistants as he sees fit. See Wis. Stat. § 978.03(1) & (3).

¶22 We believe, however, that it is important to remind all lawyers, as well as prosecutors, that it is a violation of the lawyer’s code of ethics for a lawyer to tell a jury what he or she believes is the truth of the case, unless it is clear that the lawyer’s belief is merely a comment on the evidence before the jury. Supreme Court Rule 20:3.4 is explicit:

A lawyer shall not: … (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused. ^[2]

(Emphasis and footnote added.) See also State v. Johnson, 153 Wis. 2d 121, 133 n.11, 449 N.W.2d 845, 850 n.11 (1990) (It is “unprofessional ‘for the prosecutor to express his or her personal belief.’”) (quoting ABA Standards for Criminal Justice § 3-5.8(b) (2d ed. supp. 1986); United States v. Young, 470 U.S. 1, 6–11 (1985) (discussing expressions of personal belief by counsel). We set out in context the offending remark by the prosecutor, Milwaukee County assistant district attorney Irene E. Parthum:

I think that the State has proven its elements. I think that this kind of a vague Early Watkins’ statement is not consistent with Carlos Williams and Carlos Williams’ one is not consistent with the facts as they were found. I’m asking you to find the defendant guilty because I believe truly that he is guilty, but your belief is the one that counts, and there is no jury in the world that is more credible and qualified to do this than you. ^[3]

(Emphasis and footnote added.) The “I believe truly that he is guilty” assertion was improper and violated the then-extant Supreme Court Rule 20:3.4(e) as well as the one that will be effective July 1, 2007. We trust that all lawyers will comply fully with both the spirit and letter of Rule 20:3.4(e), and that the trial courts will enforce this obligation. See Young, 470 U.S. at 7–10 (discussing obligations of the trial courts in preventing lawyer misconduct).

 ^[2] The Rules of Professional Conduct were amended, effective July 1, 2007, by Supreme Court Order 04-07, 2007 WI 4. Supreme Court Rule 20:3.4(e) is unchanged.

 ^[3] The “no jury in the world that is more credible and qualified to do this than you” comment was, arguably, in response to what the prosecutor perceived was Jackson’s lawyer’s invitation to the jury to not reach a unanimous verdict, and thus was not per se inappropriate. See United States v. Young, 470 U.S. 1, 12–19 (1985) (discussing “invited response”).

Ouch. Pretty clear that the court of appeals intends to deter argument based on personal expression of guilt. Note that the court expressly declines to reach the merits of the issue, given that it has already reversed on other grounds, ¶21. The only purpose of the discussion, then, is to stress the court’s displeasure with the closing argument.

The supreme court, for that matter, just got done reminding that arguments disparaging to opposing counsel “are not acceptable in Wisconsin courts” under our code of ethics, State v. Thomas S. Mayo, 2007 WI 78, ¶42 (“’Specifically, the prosecutor's statements that the role of defense counsel was to ‘get his client off the hook’ and ‘not to see justice done but to see that his client was acquitted’ were improper, even though they may have been invited”). Not acceptable maybe, but not distressing enough to require relief, at least in that instance. Maybe there’s a hierarchy in which personal expression of guilt occupies the top rung on the egregiousness ladder. Or maybe the disparaging remark was somewhat mitigated because it was invited (by a defense argument likening the prosecutor to Saddam Hussein (!)) but whatever distinctions might be drawn, unless this is simple coincidence it may be that the appellate courts will have increasingly less tolerance for improper argument. And might even do something about it.

Issue/Holding:

¶42      While we are satisfied that, although some of the arguments of both the prosecutor and defense counsel were improper, the remarks did not reach a level warranting a new trial based either on plain error or in the interest of justice. Specifically, the prosecutor's statements that the role of defense counsel was to "get his client off the hook" and "not to see justice done but to see that his client was acquitted" were improper, even though they may have been invited by defense counsel's remarks about the prosecutor's role. Defense counsel's remarks in his closing argument analogizing the prosecutor to Saddam Hussein and accusing the prosecutor of "spinning the evidence" were also improper and disparaging. Such disparaging remarks, made by both the prosecutor and defense counsel in this case, did not comport with the rules of ethics and civility that members of the bar are expected to, and required to, follow. Such remarks demean the judicial process and are not acceptable in Wisconsin courts. Under Supreme Court Rule 62.02(1)(c)(2002), lawyers are to "[a]bstain from making disparaging, demeaning or sarcastic remarks or comments about one another."

The court, however, almost immediately backtracks from such high-mindedness:

¶44      The fact that defense counsel’s role is to advocate for his client is common knowledge, shared by jurors. Under such circumstances, it is quite unlikely that the prosecutor’s remarks about the role of defense counsel, and vice versa, had any significant influence over the jury's decision here. Furthermore, the circuit court instructed the jury that opening statements and closing arguments are not evidence and are not to be considered by the jurors as evidence. We are satisfied, therefore, that the jury was not improperly influenced by the prosecutor's comments and that the comments did not so "'infect[] the trial with unfairness as to make the resulting conviction a denial of due process.'" Davidson, 236 Wis. 2d 537, ¶88 (citation omitted).

In other words, even though the prosecutor's disparagement of defense counsel violated the code of ethics, she wasn’t saying anything outside the jury’s “common knowledge.” Besides which, the judge instructed the jury not to regard argument as evidence. That tends to minimize the problem, doesn’t it? What’s the recourse? Ethics complaint? In any event, contrast the court’s tack with this one, People v. Alvarado, 141 Cal. App. 4th 1577, 1580 (Cal. Ct. App. 2006): “We hold that the prosecutor in this case committed prejudicial misconduct when she began her rebuttal jury argument by stating, ‘I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crime occurred. [¶] The defendant charged is the person who did it.’”

Granted, the remarks aren’t the same, but the point is that the California court granted relief, which is the most expedient sort of deterrent to improper argument; more: that court’s mandate included that, “(p)ursuant to Business and Professions Code section 6086.7, subdivision (b), the clerk is ordered to send a certified copy of this opinion to the State Bar.” Deterrence squared. Besides, isn’t the necessary implication of the remarks in Mayo’s case that, unlike defense counsel, the prosecutor is interested in seeing justice done? And is that implication terribly different from the prosecutorial remark in Alvarado? On the other hand, what’s with the reference to Hussein? Must’ve been a wild and wooly trial.

Issue/Holding: Prosecutorial argument that the defendant had “committed a ‘crime of opportunity’ was not purely opinion, but was based on evidence before the jury,” ¶45.

¶15 ...  The prosecutor then told the jury that the Milwaukee medical examiner and a toxicologist working in his office would testify that Michael Wolk died on January 17, 2003, from an overdose of morphine that he ingested either that day or the night before, but that the prosecutor was “not asking” the jury “to make a determination who is at fault for Michael Wolk’s death. I don’t know who is at fault for that death.  I know who is at fault for giving him, several days before, some morphine and selling it to him, and that’s this defendant right here.” (Emphasis added.) In my view, all of this was highly improper.

¶16   First, a lawyer may never tell a jury what the lawyer knows about the contested issues in a case. Supreme Court Rule 20:3.4 is not only explicit: “A lawyer shall not: … (e) in trial, … assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, … or the guilt … of an accused,” but, indeed, this is law-school 101. ... Waving the “bloody shirt” of Wolk’s overdose death invited—in the most blatant way—the jury to consider the evidence as proving that, beyond the delivery-charge, Bannister was also guilty of homicide. ^[10] Thus, the prosecutor’s “warning” to the jury that “the purpose of the testimony regarding the death is not [ sic] ask someone to answer for that death, but it’s an important element of evidence that I think that you have to listen to” was disingenuous and not befitting the important role for justice that prosecutors have in our system. Indeed, it is a perfect example of the apophasis rhetorical device—arguing something by disclaiming an attempt to so argue. The prosecutor’s opening-statement dance was, as Justice Felix Frankfurter noted in a somewhat related context, akin to “the Mark Twain story of the little boy who was told to stand in a corner and not to think of a white elephant.”  Leviton v. United States, 343 U.S. 946, 948 (1952) (mem. of Frankfurter, J.).

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^[10] According to the Wikipedia online encyclopedia: “The term ‘bloody shirt’ can be traced back to the aftermath of the murder of the third Caliph, Uthman in 656 CE, when a bloody shirt and some hair alleged to be from his beard were used in what is widely regarded as a cynical ploy to gain support for revenge against opponents.” http://en.wikipedia.org/wiki/Bloody_shirt

¶20   A prosecutor’s use of non-evidence (such as assertions in an opening statement or, under some circumstances, questions) to sway a jury, can deny a defendant his or her right to confrontation when those assertions are not backed by evidence produced at trial.  Douglas v. Alabama, 380 U.S. 415, 418–420 (1965) (defendant denied right to confrontation when prosecutor’s statements and questions, although “not technically testimony,” was the equivalent in the jury’s eyes, thus triggering the right to confront).  Of course, not every opening-statement promise of proof that is not validated by evidence is a prejudicial denial of the confrontation right. ...

¶21   Further, and working synergistically with the defendant’s right to confront his or her accusers, is the rule that no party, especially a prosecutor in a criminal case, may promise to prove something that he or she knows, or reasonably should know, cannot be proven by evidence at trial. ...

...

¶24   ... Further, any lawyer, especially prosecutors, whose jobs are, as we have discussed, to seek justice and not merely convictions, should never promise in their opening statements to prove something unless they are certain that the evidence is both available and admissible. Trial judges, as impartial arbiters of justice, must ensure that this is done, and use appropriate judicial power if it is not. Additionally, institutional law offices, such as the district attorney’s office, have a special responsibility to ensure that the lawyers they send into court follow the simple rules of evidence, ethics, and fairness. ...

¶61      The State points out that, in denying Schutte’s motion for postconviction relief, the trial court observed that the prosecutor’s discussion of “sympathy” in his rebuttal was largely a counter to defense arguments regarding the impact the “accident” had on Schutte. For example, defense counsel told jurors, “And I would ask you to consider [Schutte], who’s a victim in this accident also. She was seriously injured. She lost her boyfriend. She lost her best friend and lost another friend. No matter what the verdict is, she won’t move on from this.” The State also notes that courts in other states have concluded that it is not improper argument for a prosecutor to appeal to jurors to “send a message to the community” or to hold a defendant “accountable.” ^[12]

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 ^[12] See, e.g., Jowers v. State, 613 S.E.2d 14, 17 (Ga. Ct. App. 2005) (“‘It is not improper for a prosecutor to appeal to the jury to convict for the safety of the community, or to stress the need for enforcement of the laws and to impress on the jury its responsibility in that regard.’”); State v. Collins, 150 S.W.3d 340, 354 (Mo. Ct. App. 2004) (“The State may argue that the jury should ‘send a message’ that society will not tolerate certain conduct.”); People v. Howell, 831 N.E.2d 681, 692 (Ill. Ct. App. 2005) (not error for a prosecutor to ask jurors to “hold[] the defendant accountable for his actions”); Commonwealth v. Wheeler, 645 A.2d 853, 859 (Pa. Super. Ct. 1994) (not error for a prosecutor to tell jurors that “defendants should be held ‘accountable to the law of a civilized people.’”).

In Wisconsin, the district attorney has great discretion in deciding whether to file criminal charges. Sears v. State, 94 Wis.2d 128, 133, 287 N.W.2d 785, 787 (1980). However, when the district attorney initiates a prosecution without sufficient evidence to support a conviction, or for coercive reasons, he has abused his discretion. Thompson v. State, 61 Wis.2d 325, 329-30, 212 N.W.2d 109, 111 (1973).

The trial court found that there was no probable cause to support the charge against Burgy, and we agree. ...

The trial court criticized Lucareli's motives for filing the charge on the eve of trial. ...

Instead, the evidence supports the trial court's finding that Lucareli filed the charge either to disqualify Burgy or to delay the jury trial. Lucareli's intentional misconduct had a profoundly negative impact on Burgy's ability to effectively represent Lettice. The cumulative effect of Burgy's errors deprived Lettice of his due process right to a fair trial. ...

... The trial court directly attributed Burgy's ineffectiveness to Lucareli's misconduct.

We agree with the trial court that prosecutorial misconduct deprived Lettice of a fair trial and prejudiced his defense, especially in light of the closeness of the case and the seriousness of Lucareli's misconduct. We therefore affirm the order for a new trial.

¶26      First, the prosecutor did not state that he lacked the ability to compel Arbiter or Velazquez to testify.  The prosecutor simply stated that Jaimes has “got subpoena power the same way I do to ask people to come here.” Thus, the prosecutor was pointing to the ability of both the State and Jaimes to subpoena witnesses. …

¶27      Although it is true that the State, unlike a defendant, can offer “use immunity” to a prospective witness for trial testimony under Wis. Stat. § 927.08(1)(a), the prosecutor cannot grant use immunity. …

¶74 The circuit court was correct that a prosecuting attorney ordinarily may not comment on an accused's decision not to testify.^[39] There are circumstances, however, when an accused "opens the door" to a measured response by the prosecuting attorney.^[40] The defendant opened the door in the instant case. It is impossible to draw "a bright line for all cases between permissible and impermissible comment;"[41] whether a prosecutorial comment crosses over "into the forbidden area of comment on an accused's failure to testify"^[42] and "violates constitutional rights must be made case by case."^[43] We conclude, however, under the circumstances of the instant case, that the circuit court did not give adequate consideration to the State's response and to a curative instruction.

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[39] Griffin v. California, 380 U.S. 609, 614-15 (1965).
[40] United States v. Robinson, 485 U.S. 25, 31-34 (1988); State v. Keith, 216 Wis. 2d 61, 80-83, 573 N.W.2d 888 (Ct. App. 1997); State v. Johnson, 121 Wis. 2d 237, 247-49, 358 N.W.2d 824 (Ct. App. 1984).
[41] State v. Edwardsen, 146 Wis. 2d 198, 215, 430 N.W.2d 604 (Ct. App. 1988).
[42] Id.
[43] Id.

¶23. DeLain next claims the prosecutor's use of a "golden rule" argument during his closing argument requires reversal. Generally, a golden rule argument involves asking the jurors to place themselves in the position of someone claiming injury or damage and asking the jurors to determine what they would want as compensation. See Featherly v. Continental Ins. Co., 73 Wis. 2d 273, 284, 243 N.W.2d 806 (1976). In a criminal case, a golden rule argument asks the jurors to place themselves in the victim's shoes. See Rodriguez v. Slattery, 54 Wis. 2d 165, 170, 194 N.W.2d 817 (1972). These statements are not allowed because they appeal to the jurors' sympathy for persons who have been injured or victimized by a crime.

¶24 … DeLain argues this was an improper golden rule argument that so infected the trial with unfairness such that the conviction results in a denial of due process. See State v. Lettice, 205 Wis. 2d 347, 352, 556 N.W.2d 376 (Ct. App. 1996). Thus, he claims the trial court erred by failing to grant his motion to dismiss. We disagree.

¶25. The decision of whether to grant a motion for a mistrial lies within the trial court's discretion. State v. Ross, 2003 WI App 27, ¶47, 260 Wis. 2d 291, 659 N.W.2d 122. …

¶26. Following the State's brief remark, DeLain's counsel immediately objected and the prosecutor promptly withdrew the comment and apologized for making the statement. In fact, the State later urged the jury to weigh its decision solely on the evidence and to not be swayed by emotion. The circuit court later instructed the jury to "not be swayed by sympathy, prejudice or passion. You will be very careful and deliberate in weighing the evidence. I charge you to keep your duty steadfastly in mind and as upright citizens to render a just and true verdict." Because of the isolated nature of the remark, the State's immediate response, and because juries are presumed to follow the instructions, State v. Smith, 170 Wis. 2d 701, 719, 490 N.W.2d 40 (Ct. App. 1992), we conclude the trial court did not erroneously exercise its discretion by denying the motion for a mistrial.

¶12. During closing argument, the State proposed the following to the jury:

See, this argument -- While defense attorneys try and say, well, we're not saying the police are lying; what else are they saying? There's no other reasonable explanation, and it kind of frustrates me knowing and working in this field and knowing these officers; and you know them now too. You know them. They work hard. They do a tough job. They come in here to testify a lot of times. They work long, long hours. You weigh their testimony against the defendant's.

…

¶19. In the case before us, because of certain evidentiary deficiencies and inconsistencies, the pendulum of fairness hung in equipoise.

…

¶23. The line between permissible and impermissible final argument is not easy to follow and is charted by the peculiar circumstances of each trial. Whether the prosecutor's conduct during closing argument affected the fairness of the trial is determined by viewing the statements in the context of the total trial. State v. Wolff, 171 Wis. 2d 161, 167-68, 491 N.W.2d 498 (Ct. App. 1992). The line of demarcation to which we refer "is thus drawn where the prosecutor goes beyond reasoning from the evidence to a conclusion of guilt and instead suggests that the jury arrive at a verdict by considering factors other than the evidence." State v. Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784 (1979). "Argument on matters not in evidence is improper." State v. Albright, 98 Wis. 2d 663, 676, 298 N.W.2d 196 (Ct. App. 1980).

¶24. In close cases, a prosecutor must be sensitive to the evidentiary hand that he or she has been dealt. When arguing by inference, special care must be taken that there exists an evidentiary basis, however slight, for the logical conclusion he or she suggests in the closing argument. Artful subtleties, ill-cast and expressed, may be occasion for error. A prosecutor's interest as a representative of the state is "not [to] win a case, but [to see] that justice shall be done." Viereck v. United States, 318 U.S. 236, 248 (1943).

¶25. In this close case of evaluating credibility, we cannot ignore the prosecutor's self-imposed frustration at his own proposed suggestion that testifying police officers may have lied. This argument was made not in rebuttal, but in the State's opening final argument. There is, however, no basis in the record to assume the suggestion that any police witness lied. Nor is there any evidentiary basis to claim such an argument was invited. Smith's defense was mistaken identity, lack of physical evidence, and failure to meet the burden of proof. Once the prosecutor's rhetorical straw man was created, however, it had to be eliminated. How did the prosecutor accomplish that? With the challenged closing argument: "[I know] these officers; and you know them now too. You know them. They work hard. They do a tough job. They come in here to testify a lot of times. They work long, long hours. You weigh their testimony against the defendant's."

¶26. It is undisputed that there is no evidentiary basis for the officers' work habits or job demands, or the basis for the prosecutor's knowledge of them. This portion of the prosecutor's closing argument unfairly referenced matters not in the record and vouched for the credibility of the police witnesses. In the context of the total trial, we conclude that the quoted portion of the prosecutor's final argument placed the reliability of the proceedings in doubt to the extent that the fairness of the trial has been jeopardized. We conclude that Smith was prejudiced. Because the trial court did not conduct an evidentiary hearing to address the alleged deficiency of trial counsel for failure to object to the final argument or move for a mistrial, we remand for an evidentiary hearing for this determination.

¶23. Our conclusion is consistent with Aliwoli v. Carter, 225 F.3d 826 (7th Cir. 2000), where the seventh circuit recognized that although there is no place in a criminal prosecution for "gratuitous references to race," the State may properly refer to race where it is relevant to the defendant's motive. See id. at 831....

¶26. Similarly, we do not view the prosecutor's statements as an attempt to arouse jury prejudice toward Koreans. Rather, the statements were an attempt to preview and summarize evidence demonstrating that Chu had a motive for committing the arson: his personal belief, based on his upbringing and culture, that he should remain loyal to his family. Indeed, the jury heard evidence concerning Chu's individual beliefs, introduced through Weiss as admissions."