Flamboyant Jackson attorney Gerry Spence was chastised by the 10th U.S. Circuit Court of Appeals for "egregious" behavior in his prosecution of Mark Hopkinson.
However, the court noted in its recent ruling on the Hopkinson case, Spence's conduct did not affect the "fundamental ability of the jury to weigh the evidence" and so was not enough to overturn Hopkinson's murder convictions.Spence has not responded to the court's comments, noting that the case is still pending.
Hopkinson is on death row for murder convictions stemming from the bombing deaths of Evanston attorney Vincent Vehar and two members of his family and the torture-slaying of Jeff Green.
Green had been scheduled to testify before a federal grand jury about the 1977 bombing when he was killed.
Hopkinson was sentenced to die for Green's murder but has managed to obtain stays while challenging his convictions.
In the latest challenge, the 10th Circuit last month extended a stay of Hopkinson's execution pending review of grand jury transcripts by U.S. District Judge Clarence Brimmer in Cheyenne.
At issue, the court ruled, is whether evidence in the transcripts could be beneficial to Hopkinson.
In his appeal the inmate contends that the presentation of evidence of prior crimes denied him a fair trial and that the introduction of out-of-court statements made by two of the men he stands convicted of having killed violated his constitutional right to confrontation and cross-examination.
Hopkinson also maintained in the appeal that the trial atmosphere violated his due process rights and that a prosecutor's misconduct in closing arguments denied him a fair trial.
The appellate court's ruling said that the "most serious misconduct" occurred during Spence's response to defense counsel contentions that Mike Hickey had received a "deal" when he was granted immunity in the murder and mutilation of a 15-year-old Bridger Valley girl in exchange for his testimony that Hopkinson paid him to bomb the Vehars.
When Spence argued that he "had to sit down" with others aligned with the state and "figure . . . out who was morally responsible . . . for Vehar's death," he was in essence improperly testifying to matters outside court rec-ord, the opinion said.
"What makes this prosecutorial testimony particularly egregious is that it included the prosecutor's personal opinion on the merits of the case," the opinion said. "In effect, the prosecutor states that he, as well as (then Third District) Judge (C. Stuart) Brown, other prosecutors, and the sheriff's office, all decided that Hopkinson was guilty."