A district attorney committed misconduct during a trial by repeatedly making improper references to the jury, including saying the defendant “smiles like a villain,” the Colorado Court of Appeals concluded on Thursday.

“The prosecutor’s misconduct in this case infected much of his closing argument,” wrote Judge Ted C. Tow III for the appellate panel, which ultimately upheld the murder conviction of defendant Thomas Lee Johnson. “Though extensive, we cannot say that the misconduct so pervaded the trial process as to deprive Johnson of a fundamentally fair trial.”

A jury in Routt County convicted Johnson in 2016 of murdering Lori Bases. Johnson’s appeal asserted multiple claims, one of which was that now-14th Judicial District Attorney Matt Karzen made several statements to the jury that crossed the line of acceptability.

“While prosecutors are free to strike hard blows, they are not at liberty to strike foul ones,” Dayna Vise, a deputy state public defender, told the three-judge appellate panel during oral argument. “When a prosecutor engages in the type of overzealous, repeated, very personal, improper tactics that occurred here, it runs the risk of violating due process.”

Karzen said on Friday he believed the panel decided the appeal correctly, but that “hard-hitting arguments” come across differently when read in retrospect than they do live in a courtroom.

“Demeanor, tone, facial expressions, visual presentations containing written words that don’t appear in the transcripts cannot be duplicated in a sterile record, and I think sometimes appellate courts are not well served by that reality,” Karzen said.

The governor appointed Karzen to lead the district attorney’s office in 2019, and Karzen won election to the seat last year.

During closing arguments in Johnson’s 2016 trial, the defense attorney objected to several statements from Karzen. Although the Court of Appeals determined several comments were within bounds, other references ran afoul of established limitations.

One example was Karzen’s characterization of an expert witness as “co-opting the work of others” and “pretend[ing] like he’s the author of the book,” which, in the appellate panel’s view, unfairly accused the witness of plagiarism. The panel similarly drew the line when Karzen characterized the expert’s testimony as “made up…garbage.”

Grant R. Fevurly, assistant attorney general, defended Karzen’s statements to the Court of Appeals as proper references to the evidence when taken in context.

“I think that’s important to consider when analyzing the allegations here is you can’t isolate these statements or take them in a vacuum,” he said. The appellate panel disagreed.

“In short, even where the evidence supports a hard-hitting attack on an expert’s credentials and credibility, a prosecutor who instead attacks the expert personally, rather than the expert’s credentials and opinion, goes too far,” Tow wrote in the unpublished March 18 opinion.

Although Johnson’s attorney did not object at the time to Karzen when he said Johnson “smiles like a villain,” the panel deemed the remark improper because it referenced a wedding photo taken after the murder, and was irrelvant to the case.

The comment “was not a rhetorical flourish used to comment on the evidence; in fact, it had nothing to do with the evidence of the crime,” Tow explained. “This comment at best injected the prosecutor’s opinion about Johnson’s behavior in circumstances wholly unrelated to the crime and at worst injected derogatory implications about Johnson’s character and the prosecutor’s opinion about that character. Such remarks and personal opinions are improper.”

Courts in Colorado permit prosecutors to employ oratorical embellishments and commentary about evidence in closing arguments, awarding the benefit of the doubt to “inartful” statements. There are limitations to the rhetoric, however: courts have previously drawn the line at statements that were unsupported by the evidence, told the jury to “do its job,” or compared the defendant to Iraqi dictator Saddam Hussein.

Michael D. Cicchini, a criminal defense lawyer in Wisconsin, wrote in 2018 in the Oklahoma Law Review that prosecutors have learned that pushing limits during closing arguments “is virtually risk free: the difficulty defense lawyers face in quickly identifying and immediately responding to improper arguments typically results in the prosecutor’s misconduct going unchecked and the state gaining an illegal advantage without repercussion.”

The appellate court in Johnson’s case affirmed the convictions, reasoning the evidence of his guilt was so overwhelming that the prosecutorial misconduct did not likely affect the verdict.

In response to a question from Judge Michael H. Berger about what the “worst” instance of misconduct was during the trial, Fevurly cited the prosecutor’s repeated use of the word “lie” in opening statements. However, the trial court judge addressed those comments at the time, and the Court of Appeals did not weigh in.

The case is People v. Johnson.