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Univ. of South Carolina School of Law

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Sunday, March 23, 2008

Sympathy For The Devil: Fifth Circuit Upholds Defendant's Drug Convictions In Easter Case

The Fifth Circuit's recent opinion in United States v. Whittington, 2008 WL 659150 (5th Cir. 2008), seems to me to underplay the prejudicial effect of comments made by a prosecutor during opening and closing statements.  In Whittington, Jasinda Whittington, Jose Cardona, and others were convicted of various drug related crimes.  At trial, three witnesses, Fuentes, Benevides, and Guerra, who had been incarcerated with Cardona, testified pursuant to plea agreements. All three testified that Cardona was a member of the Mexican Mafia. They also testified that Cardona had told them details of his drug-trafficking and that Cardona also gave them names of other individuals involved in his trafficking. One testified that Cardona used the term “chickens” as code for drugs. Conversations between Cardona and his wife that were recorded while Cardona was incarcerated indicated that they used the term “chickens” regularly in discussing various transactions

On appeal, Cardona argued, inter alia, that he deserved a new trial based upon improper comments made by the prosecutor during opening and closing statements.  During opening statements, the prosecutor told the jury that it would hear what some witnesses would expect the government to do in return for their truthful testimony. The prosecutor concluded: "Throughout the trial you won't hear the United States apologizing for having to make those deals with the sinners who are paying their penance so that we can convict the person that we believe to be the devil here today." (emphasis added).  During its rebuttal at closing arguments, the prosecutor stated, "When I began this trial, I told you I wouldn't make any apologies for making the deals with sinners that i made on behalf of the United States to convict that man, the devil." (emphasis added).  Cardona did not object to these statements at trial, but he argued that they were unfairly prejudicial on appeal, and the Fifth Circuit correctly noted that in deciding whether Cardona was entitled to a new trial, it had to consider  "(1) the magnitude of the statement's prejudice, (2) the effect of any cautionary instructions given, and (3) the strength of the evidence of the defendant's guilt."

The court then found that the prosecutor's remarks could be characterized as simply a colloquialism because he appeared to be referring to Cardona in each statement. The Fifth Circuit then "assume[d] without deciding that referring to a defendant as 'the devil' [wa]s improper."  It found, however, that such references did not affect Cardona's substantial rights because "[a]lthough such a statement, made during Easter week...would negatively impact the jury, the specific wording of the statement was designed to explain the plea agreements that the government made with unsavory characters that testified against Cardona." The court found that the "statements were minimized by the context in which they were made and would be of little prejudice."  Finally, the court noted that while no cautionary instruction was given, Cardona did not object to the statements, and there was significant other evidence of his guilt.

Leaving aside the issue of the oddness of the court apparently finding that referring to the defendant as "the devil" would be more prejudicial during Easter week than at other times during the year, and leaving aside factors (2) and (3), I don't see how the court's consideration of the magnitude of the statements' prejudice makes any sense.  In effect, the court is saying that if the prosecutor merely said that the jurors should consider the evidence closely because the defendant was the devil, his statement would have been unequivocally prejudicial.  According to the court, however, because the prosecutor said that he wasn't going to apologize for making deals with sinners because he was doing so to prosecute "the devil" was less prejudicial based upon its context. 

This makes no sense.  In the first case, it seems to me that jurors could just think that the prosecutor was using hyperbole and telling them to look closely at the evidence because the defendant was guilty.  In the second case, however, it seems to me that the jurors were unequivocally told one thing:  sure, these state's witnesses are somewhat bad guys, but they're merely going to one of the upper circles of hell, but the defendant is so evil that he's actually the guy running the place.  You must concvict him.

-CM

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