Defense urges reversal in State v. Forshaw, arguing prosecutor’s rebuttal was incurable misconduct; state asks affirmance

Oral arguments in State v. Forshaw focused on whether a prosecutor’s rebuttal closing at trial crossed the line into incurable prosecutorial misconduct and how that question intersects with any ineffective-assistance-of-counsel (IAC) waiver.

Erin Moody, counsel for Richard Forshaw, told the court she would “use my time today to address the prosecutorial misconduct claim,” arguing that the waiver doctrine as applied can create an asymmetry that presumes prosecutorial good faith while treating defense counsel as if they act cynically. Moody said she relied on three lines of precedent and urged the panel to view the prosecutor’s rebuttal as both vouching and an inflammatory appeal that could not be cured by a jury instruction.

Moody described two forms of vouching at issue—when a prosecutor presents a personal judgment to the jury and when a prosecutor implies knowledge of facts not subject to adversarial testing—and said the prosecutor committed both while discussing photographic evidence. "I made a call to not admit that evidence. You shouldn't punish me for making that decision," Moody quoted the prosecutor as saying, and Moody said the prosecutor added, "I know this defendant... he would enjoy looking at those" photos.

A judge pressed Moody on whether the prosecutor’s reference to the state’s burden of proof—"I made this call and I have the burden of proof"—was itself problematic, saying that referencing the burden is not necessarily misconduct. Moody acknowledged that but urged the court to consider the comments in context and cited cases (Powell, Smiley) where similar arguments were treated as inflammatory and incurable because they invited juror passion rather than reliance on the evidence.

Candace Novak, deputy prosecuting attorney for the State of Washington, asked the court to affirm Forshaw’s conviction. Novak said the prosecutor’s isolated rebuttal remarks were a response to defense counsel’s closing and that the language reflected the state carrying its burden rather than an attempt to have jurors punish the prosecutor personally. "I don't believe that the prosecutor was implying that the jury would be punishing her in particular," Novak said, acknowledging that the phrasing might have been "not the most eloquent" but disputing that it amounted to reversible misconduct.

Novak told the panel that even if the court found the comment improper, the record contained sufficient evidence to make reversal unwarranted: the victim’s statements to her mother and to the nurse, and the nurse’s testimony that injuries were consistent with penetration. Novak argued judges should consider the strength of the evidence and the instructions given to the jury when assessing whether any error was harmless.

The panel questioned whether an instruction (for example, reminding the jury that attorneys' arguments are not evidence) could have cured any harm and whether trial counsel’s failure to object reflected a tactical choice rather than deficient performance. Novak noted objections in rebuttal can backfire—letting the prosecutor dwell on the issue—and argued the IAC and misconduct prejudice inquiries differ in part because IAC begins with a presumption of counsel’s reasonableness.

Moody closed by returning to her broader fairness argument: even if defense counsel acted reasonably, the court should guard against a doctrine that routinely forces defendants to rely on counsel to detect and cure prosecutorial excess. She asked the court to reverse. The panel thanked counsel and submitted the case.

The court did not issue a decision at argument; the matter was submitted for decision by the panel.