5th District Court of Appeal
Case No. 5D15-3622
February 2017

Marco Antonio Rodriguez vs. State of Florida

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Case Details


In a 2-1 decision, the majority reversed a conviction for lewd or lascivious molestation and the case was sent back to the lower courts for a new trial. The decision also ordered that the Florida Bar would be alerted to the conduct of the Prosecutor. The ruling reads:

"... there is no doubt that Appellant was denied a fair trial ... Confidence in our judicial system suffers when prosecutors are permitted to utilize clearly inappropriate closing arguments to convict."

The closing arguments were unprofessional and amounted to "egregious prosecutorial misconduct". For example:

  • The Prosecutor called the Defendant "pedophile" seven times. This could lead the jury to convict based on prejudice instead of facts. Each time it was used, it increased the risk.
  • The Prosecutor misrepresented evidence to the jury. For example, the Prosecutor falsely told them the Defendant admitted to things that he had "consistently, repeatedly denied".
  • The Prosecutor urged the jury to give justice to the victim. It is well-established that this is not an appropriate tactic, because it asks the jury to rely on their emotions instead of facts.

This Court also mentions 4 additional types of misconduct, without writing out details. For example, mocking the Defendant.

Because the misconduct was constant and varied, the majority decided it rises to the level of a new trial. The ruling states that "it made a mockery of the constitutional guarantee of a fair trial".

The majority also argues that the Defense had a duty to object. The Defense's objections would have protected the Defendant's rights. The right to appeal and the right to a fair trial. If the Defense objected, the impact of the misconduct would have been reduced. It is likely that the trial judge would have explained the error to the jury. Also, the Prosecutor could have been reminded to continue professionally.

Even if the Defense didn't object, the trial judge had a duty to step in.

This Court is sending it back for a new trial, and reporting the Prosecutor's misconduct to the Florida Bar for review. The ruling acknowledges how difficult a new trial will be for all involved, but they felt there was no other choice. They say, "Confidence in our judicial system suffers when prosecutors are permitted to utilize clearly inappropriate closing arguments to convict."

Dissent: Judge Palmer

"... the unobjected-to statements made by the prosecutor, although improper, do not rise to the level of fundamental error."
Read the full ruling


In 2015, Marco Antonio Rodriguez was convicted of sexually molesting a 5-year-old girl. He was found guilty on 2 counts of lewd and lascivious molestation, and not-guilty on one of the counts.

The trial's Prosecutor does not appear to have been reprimanded by the Florida Bar.

Related Articles

Article: Appeals court chastises Orlando prosecutor, orders new trial for accused child sex offender (Orlando Sentinel, 2017)

Note: Some resources, like the Orlando Sentinel and Florida Today, have a limited number of free articles before putting up a paywall.

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