People v. Smith

Issues Raised on Appeal:

Prosecutorial Misconduct and Jury Instructions

In that case, Smith went to trial with another attorney and he was convicted of attempted murder of a police officer and sentenced to 35 years in prison. 

During closing arguments, the prosecutor repeatedly made comments to the jury that Smith had never presenting any evidence that he didn’t try to kill the police officer. 

Himel got the case on appeal and argued to the appellate court that Smith was deprived of a fair trial due to the prosecutor’s remarks that shifted the burden of proof and impermissibly drew attention to Smith’s decision not to testify. Himel also argued that the judge should have instructed the jury on the lesser-included offense of reckless conduct. 

The appellate court agreed with Himel and found that the prosecutor violated Smith’s federal and state constitutional rights. The appellate court also found that the trial court’s refusal to give the reckless conduct instruction denied the jury the important option of finding Smith guilty of a lesser charge. The appellate court reversed Smith’s conviction and vacated the 35 year sentence.