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Univ. of South Carolina School of Law

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Friday, August 29, 2008

I'm A Soldier: Supreme Court of Missouri Finds Closing Statement Comparing Jurors To Soldiers Is Not Plain Error

According to the Supreme Court of Missouri's recent opinion in State v. McLaughlin, 2008 WL 3906355 (Mo. 2008), a prosecutor's closing statement comparing jurors to soldiers is not plain error.  In McLaughlin, the jury found Scott A. McLaughlin guilty of first-degree murder, forcible rape, and armed criminal action based on the first-degree murder in connection with the rape and murder of his ex-girlfriend.  The jury, however, deadlocked on the final step of the punishment phase, and so the question of punishment went to the trial judge, who imposed a sentence of death.  McLaughlin subsequently appealed, claiming, inter alia, that the jury might have imposed a lighter sentence if the prosecutor had not made prejudicial remarks during his closing statement

The contested portion of that statement, to which defense counsel did not object, went as follows:

     "Also, another thing I want to point out to you is when you are out there deciding now what you are going to do, when you're deciding - we've talked about that duty. When you find a shred of humanity, ladies and gentlemen, find it for her family.

     You know, she didn't have somebody there who was trying to decide her fate and decide whether she should live or die. She just had this man. You know, sometimes when you come in you have a duty. You've all seen this. You've all seen soldiers in World War II. You know, they're now what? In their 70s and 80s, if they're still around.

     They went back in World War II, and they did their duty. The war wasn't something I'm sure they took pleasure in. They didn't want to do that. They didn't want to get taken away from their families and go over and fight the Germans and the Nazis. That wasn't what they wanted to do; they had a duty to do it, and they did their duty.

     And just as you have a duty to do.

     When you talk about those men now, and you look at those men, you know what? They're able to stand up there tall, and they're proud. They're not proud because of what they had to do to those other young men, but they're proud because they're able to do their duty. They did what was right even though it was hard to do that.

     So, ladies and gentlemen, you've heard all the evidence. You've heard both the aggravating and mitigating. It's up to you to decide. In doing that, if you're trying to think of why you should do this, well, number one, the evidence is there for you to do it. And, number two, you know, you could send a message. Even if it only stops one other person from doing what he did, that's a message you want to send."

The Supreme Court of Missouri found that the admission of this statement was not plain error, contrasting this closing statement with one found to be improper in Weaver v. Bowersox, 438 F.3d 832 (8th Cir. 2006).  In Bowersox, the prosecutor said:

     "I know there's a movie, Patton, and in the movie, George Patton was talking to his troops because the next day they were going to go out in battle and they were scared as young soldiers. And he's explaining to them that I know that some of you are going to get killed and some of you are going to do some killing tomorrow morning. And they all knew that. And he was going to try to encourage them that sometimes you've got to kill and sometimes you've got to risk death because it's right. He said: But tomorrow when you reach over and put your hand in the pile of goo that a moment before was your best friend's face, you'll know what to do."

The Supreme Court of Missouri found, however, that Bowersox was not analogous for two reasons.  First, according to the court, "[i]n the present case, the comment by the prosecutor was not as extensive as that criticized in Weaver."  Really?  I count 330 contested words in the McLaughlin closing statement compared to 126 contested words in the Bowersox closing statement, seemingly making the former much more extensive. 

Second, according to the court, unlike the prosecutor in Bowersox,

     "the McLaughlin prosecutor did not tell the jury that it was its duty to impose death.  Rather, he basically told the jurors that like soldiers, they had a duty, but he then identified that duty as being to hear the evidence and decide on a punishment, stating, “[s]o, ladies and gentlemen, you've heard all the evidence. You've heard both the aggravating and mitigating. It's up to you to decide.” He did not tell them it was their duty to decide to kill, in other words, but to reach a decision."

Maybe I'm reading too much into the McLaughlin prosecutor's closing statement, but it certainly doesn't seem to me that he was simply asking the jurors to "reach a decision."  He told them that, like the soldiers fighting the Nazis during World War II, they had a duty to do something that they didn't want to do.  How could that merely be the duty to "reach a decision," when that is exactly what most jurors want to do so that they can get on with their lives (Pauly Shore in "Jury Duty" excepted).  Instead, it seems clear to me that he was asking them to sentence McLaughlin to death.

And it seems to me that my assumption is confirmed by the last two lines of the prosecutor's closing.  in those lines, he stated, "In doing that, if you're trying to think of why you should do this, well, number one, the evidence is there for you to do it. And, number two, you know, you could send a message. Even if it only stops one other person from doing what he did, that's a message you want to send." (emphasis added).  It's clear to me that "this" means the imposition of the death penalty, and how could it not be?  Section 565.030 of the Missouri Code states that jurors in the McLaughlin case only could have imposed the death penalty or life imprisonment without eligibility for probation, parole, or release except by act of the governor.  I strongly believe that the prosecutor was telling them to do the former despite not wanting to do so because it was their duty, just like it was the duty of the soldiers during World War II.

-CM    

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