Tuesday, November 19, 2019

The Shoals

For the second time, the Massachusetts Supreme Judicial Court has reversed a murder conviction for, in part, prosecutorial misconduct in closing argument

Lessons unlearned

The defendant argues that in his closing the prosecutor improperly appealed to the jury's sympathies, thus replicating an error in Niemic I that contributed to the need for a new trial. See Niemic I, 472 Mass. at 675. The Commonwealth concedes that, rather than steering a wide berth around this error on retrial, the prosecutor relied on virtually the same language on a number of occasions. Notwithstanding this court's decision in Niemic I, supra, the Commonwealth argues that the language was not an improper appeal to sympathy, but, rather, was "entirely appropriate." Alternatively, the Commonwealth maintains that, in "context," no reasonable juror would have drawn the inference from the challenged statements that the prosecutor was appealing to sympathy or saying that the defendant's testimony was inherently incredible.

Berthed too close

In the context of this case, the use of the rebuttal testimony as substantive evidence, and the improper appeals to sympathy and emotion were prejudicial to the defendant. Because the statements at issue addressed his intent in approaching the victim -- a core issue at trial underpinning his conviction for premeditated murder -- and called upon the jury to rely on sympathy and emotion, the wrongful use of such evidence constituted prejudicial error. That is so because, in this context, the prosecutor's improper statements on seminal issues would have been too intertwined with what the prosecutor himself described as his "strenuous[]" and "contentious" trial strategies for the jury to have engaged in "fair and calm" consideration of the evidence (citation omitted). See Santiago, 425 Mass. at 494. We have serious doubt, particularly when these errors are reviewed in combination with those revealed in our review under G. L. c. 278, ยง 33E, "whether the result of the trial might have been different had the error[s] not been made." Russell, 439 Mass. at 345, quoting LeFave, 430 Mass. at 174. Accordingly, a new trial is necessary.

(Mike Frisch)


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