Orange County molestation convictions overturned after prosecutorial misconduct

A split appellate court panel has thrown out the molestation convictions of an Orlando-area man, saying he was the victim of “egregious prosecutorial misconduct.”

In a 2-1 opinion, a three-judge panel of the 5th District Court of Appeal last week vacated Marco Antonio Rodriguez’s convictions and remanded the case back to the Orange County Circuit court for retrial. He is now serving an 18-year sentence, records show.

Judges James A. Edwards and Richard B. Orfinger also said Rodriguez’s case was compounded by his defense attorney’s “unexplained failure to object.”

They admitted “the jury may have reached the proper verdict, given the evidence in this case,” but nonetheless found he was “denied a fair trial.”

“Appellant’s retrial is not just a ‘do over,’ ” they wrote. “The alleged victim, a child, will once again have to tell her story of familial sexual molestation to a judge and a second jury, while (Rodriguez) will once again be publicly accused and tried for sexually molesting a five-year-old.

“All of the witnesses’ normal schedules will be interrupted as they stand by to testify and attend court,” they added. “Other parties’ trials will be delayed because this case must be tried twice.

“Confidence in our judicial system suffers when prosecutors are permitted to utilize clearly inappropriate closing arguments to convict. Winning at all costs is too high a price to be paid by too many.”

During the prosecutor’s rebuttal part of his closing argument, he “strayed from acceptable zealous representation, repeatedly crossed far beyond the outer limits of acceptable argument, while venturing deeply into the realm of prosecutorial misconduct,” the opinion said.

As one example, he “referred to (Rodriguez) as a ‘pedophile’ ” seven times.

“Inflammatory labels used by a prosecutor to describe the defendant are improper invitations for the jury to return its verdict based on something other than the evidence and applicable law,” the judges wrote.

“Unfortunately and inexplicably, defense counsel sat silently by, never objecting, during the repeated improper comments made by the prosecutor,” the opinion added.

They also criticized the trial judge, noting he had “a duty, even without hearing any objection, to bring a swift and sure end to prosecutorial misconduct in closing argument, especially when it becomes as frequent and flagrant as in this trial.”

“The flood of improper prosecutorial comments in closing argument in this case was deep, wide, and unrelenting,” they said. “(I)t made a mockery of the constitutional guarantee of a fair trial.”

Edwards and Orfinger further ordered “the clerk of this court to provide the Florida Bar with a copy of this opinion, a copy of the trial transcript, and a letter identifying the attorney who prosecuted this case … so that the Bar or on its referral, the Ninth Judicial Circuit’s Local Professionalism Panel, can decide how best to address this lawyer and the unfortunate conduct.”

A third judge, William D. Palmer, issued a two-line dissent, saying “the unobjected-to statements made by the prosecutor, although improper, do not rise to the level of fundamental error.”