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DeJesus v. Flick8/24/2000
zing that " he ability of this court to consider relevant issues sua sponte in order to prevent plain error is well established"); see also Kaas v. Atlas Chem. Co., 623 So.2d 525, 526 (Fla. Dist. Ct. App. 1993) (attorney's expression of his personal opinion that an expert witness is a liar is misconduct warranting a new trial, and no objection is required because such arguments fall squarely within that category of fundamental error in which the basic right to a fair trial has been fatally compromised); Sadler v. Arizona Flour Mills Co., 121 P.2d 412, 413 (Ariz. Ct. App. 1942) (when prevailing party's attorney's misconduct during argument is a ground for vacating the verdict, trial court may grant a new trial despite the absence of any objection).
Many of Mainor's arguments to the jury far exceeded the boundaries of acceptable professional conduct. The record is replete with examples; the following excerpts illustrate the level of impropriety that Mainor exhibited. To begin, Mainor inappropriately accused DeJesus's expert witness, Dr. Oliveri, of committing perjury and personally attacked his credibility:
"I guarantee you if I'd have hired Oliveri, you'd have heard that [Flick] had all these problems. I guarantee you that. If I'd have given him fifteen hundred bucks ($1500.00), he'd have come in and he would have been able to concur with Ford [Flick's expert]. That's the way it works. That's the real world. See, you folks don't know that. But I've been doing this for twenty years and that's the way it's done. And -– and what they try to do is influence jurors by this nonsense, these IMEs. They're not independent of anything. They are biased and prejudiced against people who are hurt.
he reason why I put [Flick's] dad on for the one question, it was to merely show you folks that Oliveri does not –- did not tell the truth. I knew I could . . . present evidence that he wasn't qualified in what he was saying and I knew his opinions wouldn't hold any water, but I wanted you to –- I wanted you to look at him and question his truthfulness.
I was going to have [Flick's dad] tell more about what he observed there, but all that would have done, I think, is make Oliveri look a little more stupid than I'd already done, and I didn't think that was necessary. . . . he issue is was [Oliveri] telling the truth and the answer is, no, he wasn't.
You're at liberty, if you want, to take Oliveri's testimony and tear it up and throw it in the garbage can because I think he lied on the stand, didn't necessarily lie but didn't totally tell the truth. . . . He violated his oath because he told the truth but he didn't tell the whole truth, and he told a few things other than the truth. His testimony is –- is not credible in my estimation."
Mainor improperly interjected his personal opinions about the defendant. He told the jury how much he personally disliked DeJesus because DeJesus nearly killed two people and because he had acquired some sense of Flick's suffering during preparation for trial:
"I have a hard time liking this man. He nearly killed a couple of people. And, you know, I'm not sure that I accept his repentance. I have a forgiving heart. I think I can do that. But I can tell you, I don't like him. And the reason why I don't is because you guys have only seen [Flick] for four days. I've seen her for nearly two years. I've seen her a lot. And you got a little bit of a sense of what she's been going through. I have a much greater sense of what she's gone through 'cause I've been with her and been with her family."
Mainor improperly gave his personal opinion as to the justness of Flick's cause, and that of other plaintiffs clai
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