"It is appropriate to object to defense jury argument if the state believes the argument is attempting to mislead the jury regarding applicable principles of law; the trial court can then rule on such an objection. However it is inappropriate to fail to object to such a defense jury argument and then respond by arguing that defense counsel is attempting to mislead the jury. Such an attack is a classic example of striking at the defendant over the shoulders of defense counsel."

This passage from York, delivered today by the CCA, seems too broad to me. I am glad the opinion is not published. If opposing counsel misstates or relies upon a misconstruction of a law, you have to respond in some way- generally by pointing out who said something wrong and why they are wrong. This is not an improper personal attack. I can think of far better "classic examples," in any event.

Hmmmm . . . how about that ancient rule that two wrongs don't make a right? I note that it is DNP, however, and CCA DNPs don't have the same permissive citation rule that COA DNPs do. Right?

The Lizard Man is innocent!

That is sort of a double-edged sword. If you do not object, but then choose to respond during rebuttal argument, even a generically worded pronouncement, i.e. Mr. Defense Attorney is incorrect about this principal of law, could be construed as accusing the attorney of attempting to mislead the jury.

With the wrong judge, you could be waiving response if you do not object in a timely fashion.

How about the jury charge?

What about it, Alex? I don't follow.

I agree that the court painted with too broad a brush, but hopefully it won't affect us much with it being an unpublished opinion. (Although I keep getting briefs with defense attorneys citing those "uncite-able" opinions, oh well.) But it's possible to attack the defense attorney's interpretation of the law without actually attacking him. A simple "This is not about Ms. York's normal abilities. The law says XYZ. That's in the court's charge, that's what you have to follow, and that's what we brought you proof of" counters the defense arguments without bringing the defense attorney personally into it at all. I don't think mentioning the defense attorney by name or saying he's wrong is necessarily striking over the shoulders, but it's not necessary in most circumstances.

Attorneys may have different opinions about how to read a law; but the jury doesn't follow our opinions. The jury follows the law as given by the judge in the jury charge. As you'll read in the charge, the law says BLAH. Its your job to determine if we've presented evidence that proves BLAH. I think we have and here is why ....