Chief Deputy DA Raven Cited by Judge Mock For Prosecutorial Misconduct

Mock Rules the Violation Harmless and Sentences Defendant to 45 Years to Life in Prison

This week, the District Attorney’s office proudly sent out a press release trumpeting the conviction of Christopher Smith, who was sentenced to 45 years to life in state prison for the murder of Gidd Robinson on November 3, 2009.

What the District Attorney’s press release does not report is that in the process of conducting the trial, Chief Deputy District Attorney Jonathan Raven, who prosecuted the case, violated a court order to exclude evidence that Mr. Smith possessed over 30 assault weapons.

Judge Mock said he issued the ruling because all evidence indicated that Mr. Smith shot Mr. Robinson with a hand gun, and therefore the prejudicial effect of such evidence would outweigh any probative value.  The ruling also limited evidence to handguns and precluded any reference to rifles that were taken during a search of Mr. Smith’s home.

The issue initially rose in the defendant’s motion for a new trial.  Attorney Bradley Holmes argued for the defense, “During cross-examination of Christopher Smith the prosecutor asked him about guns that he owned. Mr. Smith was reluctant to talk about the rifles as he was aware of the Court’s prior ruling.”

At the time, defense counsel objected to this line of questioning but was overruled by Judge Mock.

At this point, the defendant admitted to 30 rifles, 12 shotguns and a number of handguns.

Writes Mr. Holmes in his argument, “This violation was exacerbated during closing arguments when the prosecution stated that Smith refused to answer his questions along this line.”

As defense argues, this is not an incidental point.  First, it “informed the jury that Mr. Smith had an extreme interest in guns” – a fact that the judge had already ruled had a stronger prejudicial effect than probative value.  But more importantly, it indicated that Mr. Smith was attempting to cover up his interest in guns, going to the heart of his credibility.

This case really hinged on his credibility.

Mr. Holmes continues, “It also strongly suggested that he lied during his testimony. Mr. Smith was merely following the Court’s ruling while answering counsel’s questions regarding his guns. The prosecution then indicated to the jury that he was lying by not answering the questions about the guns.”

The defense offered by Mr. Raven actually implicated him in prosecutorial misconduct.

In his response to the court he argued, “Discussion of the defendant’s rifles during the trial was appropriate since he talked about his firearms during his interview with Detective Semeryuk after his arrest and because the evidence became admissible after Rodney Brammeier (defendant’s step dad) testified at trial.”

When it was pointed out that the prosecution could not open its own door to excluded evidence, Mr. Raven would argue that there is a difference between the evidence included on the video interview versus the evidence that comes from live testimony.

Judge Mock scoffed at this justification, stating, “I have a hard time understanding that if you can’t bring information in, why that does not apply to the interview.”

He ruled that Mr. Raven should have redacted that portion of the interview, and that by allowing it to remain in he had violated the court’s order and therefore committed prosecutorial misconduct.

However, Judge Mock ruled that his prohibition only applied to the prosecution’s case, not the entire case.  Thus, while it is misconduct, he ruled that it was “harmless” in that it did not create prejudice against the defendant.

Judge Mock ruled that the evidence came into play with other witnesses, and therefore did not impact the outcome of the case.

Our evaluation of this matter is a bit more complicated, however.  During the trial it was notable that Jonathan Raven actually went out of his way at several different moments of time to conduct himself in an above-the-board manner.

It seems more likely than not that the inclusion of the portion of the interview with Detective Semeryuk was simply an oversight on his part.  However, instead of owning up to it, he offered a rather flimsy and transparent excuse that somehow there was a difference between introduced evidence and live testimony.

That error itself may have been harmless, except that it led the DA to believe that further questioning on this subject was permissible.

This case, in particular, hinged on whether one believed that Mr. Smith acted in self-defense when he shot Gidd Robinson.

Part of that assessment was based on whether one believes that Mr. Smith’s life was in danger when Gidd Robinson left three small children on the side of the road to confront Mr. Smith who, after their initial heated encounter, merely drove to the end of the road.

Undermining Mr. Smith’s argument of self-defense was the questionable decision to stop at the end of the road rather than exit the scene, to load his weapon and wait for Mr. Robinson rather than drive off when he saw Mr. Robinson continue to come toward him, and then to flee the scene and attempt to get rid of his evidence.

Along with that were two points that the prosecution made.  One was the fact that Mr. Smith frequented racist websites – suggesting that Mr. Smith was racist and killed Mr. Robinson because he was black.  The other is that Mr. Smith had a large gun collection and therefore, perhaps, was a “gun freak.”

The interchange on the stand was important because it suggested that Mr. Smith was less than forthcoming with his gun collection.  Mr. Raven then would use that as evidence of deception on the part of Mr. Smith, when Mr. Holmes suggested it was actually he who told Mr. Smith not to testify about his guns based on the judge’s ruling on the in limine motion.

As Mr. Holmes would argue, “In order for the jury to reach a guilty verdict of murder, they would have had to reject any attempt to create reasonable doubt as to whether the shooting was justifiable or not.”

They already knew that Mr. Smith had panicked and attempted to get rid of his gun and other evidence, possibly indicating a guilty conscience, and the large gun collection simply added to the totality of the circumstances.

In short, it is far from clear that this violation is as harmless as Judge Mock believed, but that will be for an appellate court to determine.

—David M. Greenwald reporting