Is a prosecutor permitted to tell a jury defense counsel's job is to create men, "put up smoke, red herrings", and "create men" in an attack on the integrity of opposing counsel?

"Although counsel have broad discretion in discussing the legal and factual merits of a case [citation], it is improper... to resort to personal attacks on the integrity of opposing counsel." (People v. Bell (1989) 49 Cal.3d 502, 538.) "Nevertheless, the prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account. [Citations.]" (People v. Bemore (2000) 22 Cal.4th 809, 846.)

None of the prosecutor's comments could reasonably be deemed an attack on defense counsel or to paint defense counsel as deceptive. Each of the prosecutor's remarks described what defense counsel had done during trial and how defense counsel had argued the case. The prosecutor reminded the jury to view the evidence objectively without being misled by defense counsel's interpretation. The prosecutor summarized the crux of the defendant's interpretation of the case and directed the jury to consider that he was offering the only reasonable interpretation from the evidence presented. None of the prosecutor's comments served as a personal attack on defense counsel. (People v. Cunningham (2001) 25 Cal.4th 926, 1002-1003 [permitting prosecutor to tell jury defense counsel's job was to "create straw men," "put up smoke, red herrings," and "they have done a heck of a good job" at it].)

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