9th Circuit Reverses Conviction for Prosecutor's Inflammatory Comments

The 9th Circuit has reversed a conviction in a drug case because of the prosecutor's "inflammatory comments" during closing argument in a drug trial. Even though the defendant didn't object at trial, the court found plain error. The opinion is here.

The defendant, a U.S. citizen living in Mexico, brought drugs across the border. His defense was duress. He said the traffickers threatened his family. He said he didn't want to transport the drugs because he had a 2005 drug conviction. When he was caught, he asked the border patrol to check on his family, but they say he did not explain it was because they had been threatened.

In closing, the prosecutor delivered these objectionable "send a memo" comments: [More...]

[W]hy don’t we send a memo to all drug traffickers, to all persons south of the border and in Imperial County and in California — why not our nation while we’re at it. Send a memo to them and say dear drug traffickers, when you hire someone to drive a load, tell them that they were forced to do it. Because even if they don’t say it at primary and secondary, they’ll get away with it if they just say their family was threatened. Because they don’t trust Mexican police, and they don’t think that the U.S. authorities can help them. Why don’t we do that?

What's wrong with those kind of comments? As the 9th Circuit says:

“[P]rosecutors may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence.”

...Similarly, prosecutors may not “point to a particular crisis in our society and ask the jury to make a statement” with their verdict...Nor can prosecutors comment on “the potential social ramifications of the jury’s reaching a...verdict.”

...Further, it is improper to make “statements designed to appeal to the passions, fears and vulnerabilities of the jury.”

The Court ruled:

The prosecutor’s “send a memo” statement urged the jury to convict “for reasons wholly irrelevant to [Sanchez’s] guilt or innocence.” The point of the “send a memo” statement was that if the jury acquitted Sanchez based on his duress defense, the verdict would in effect send a message to other drug couriers to use that defense themselves. This message would extend “to all drug traffickers, to all persons south of the border and in Imperial County and in California—why not our nation while we’re atit.”

The obvious implied consequence of such a message would be increased lawbreaking, because couriers would be less afraid of conviction. Thus, by his “send a memo” statement, the prosecutor was encouraging the jury to come to a verdict based not on Sanchez’s guilt or innocence, but on the “potential social ramifications” of the verdict. This was improper argument.

The conclusion:
Given the extent of the prosecutor’s misconduct in suggesting that Sanchez’s acquittal would encourage future lawbreaking, and the high risk that the misconduct influenced the jury’s deliberations, we hold that the “send a memo” statement “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.”

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  • Display: Sort:
    If this was a state appellate decision in CA, (none / 0) (#1)
    by oculus on Tue Nov 01, 2011 at 11:32:41 PM EST
    the prosecutor in question would be identified in the opinion.  

    look up the case on PACER (none / 0) (#2)
    by Jeralyn on Wed Nov 02, 2011 at 12:07:06 AM EST
    in the trial court, it will have the prosecutor's name.

    I no longer have access to PACER. (none / 0) (#3)
    by oculus on Wed Nov 02, 2011 at 12:17:07 AM EST
    Just commenting about the good fortune for this particular prosecutor.