“This Idea Of This Presumption Of Innocence Is Over”: New Murder Trial Ordered Due To Prosecutor’s Closing Argument

In a relatively rare move, the U.S. Court of Appeals for the Ninth Circuit overturned a first-degree murder conviction this week due to the inappropriate comments made by the prosecutor that the jury could dispense with notions of the presumption of innocence.  As a criminal defense attorney, I have dealt with this issue of abusive prosecutorial statements in closing arguments.  Yet, courts often do little, if anything, in response. This case could offer a real deterrent for such prosecutorial misconduct.

The reversal came in the review of the denial of habeas corpus for Keith Ford, who was charged with first-degree murder and three related firearms charges for the shooting death of Ruben Martinez. Martinez died from by a single shot to the head in a drive-by shooting in Vallejo, California.  Solano County Superior Court Judge Tim Kam presided at the trial.

During closing arguments, Ford’s lawyer offered a classic criminal defense that contradictions of witnesses and doubt over the identity of the shooter meant that the presumption of innocence had not been satisfied.  The prosecutor then decided to dispense with the whole presumption:

“This idea of this presumption of innocence is over. Mr. Ford had a fair trial. We were here for three weeks where . . . he gets to cross-examine witnesses; also an opportunity to present evidence information through his lawyer. He had a fair trial. This system is not perfect, but he had a fair opportunity and a fair trial. He’s not presumed innocent anymore.”

When Ford’s defense attorney objected, the district court overruled the objection and the prosecutor then added “And so we’re past that point.”

The statement by the prosecutor that “this system is not perfect” was an understatement given the abusive closing argument.  The statement ran afoul of Darden v. Wainwright, 477 U.S. 168, 181 (1986), which ruled that prosecutorial statements can violate due process if they “so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.”

The panel found that this is such a case:

“In stating that the presumption of innocence was now “over,” the prosecutor misstated federal law. The presumption of innocence is “the undoubted law, axiomatic and elementary”; the presumption of innocence is “vital and fundamental.” Coffin v. United States, 156 U.S. 432, 453, 460 (1895). The presumption is “a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503 (1976). Its “enforcement lies at the foundation of the administration of our criminal law.” Coffin, 156 U.S. at 453; see also Reed v. Ross, 468 U.S. 1, 4 (1984).”

Two of the three appellate judges –William A. Fletcher and Donald W. Molloy (a district judge sitting by designation), ruled in Ford’s favor. Judge Ryan D. Nelson dissented.  Judge Nelson dissenting because he saw “no reasonable probability that the jury was confused about” the presumption of innocence.

This reversal could have been avoided if the trial judge had simply upheld the defense objection and issued an instruction to the jury.  Instead, he allowed this statement to go uncontested in a case where the jury would clearly struggle with the evidence for three days of deliberation. The result was a denial of justice not only for the defendant but the family of the victim.

Here is the opinion: Ford v. Perry

31 thoughts on ““This Idea Of This Presumption Of Innocence Is Over”: New Murder Trial Ordered Due To Prosecutor’s Closing Argument”

  1. Innocent unit proven guilty? That as a layman was drilled into me from a young age. Was the Jury so naive and uneducated on this main issue they couldn’t understand that the prosecutor was making a statement of his hope that the Jury felt the same? I guess the Court felt the Jury couldn’t understand the facts presented?

    1. Did this impact the jury ? Probably not. But as Turley noted the defense objected and the judge overruled the objection, and then the prosecutor doubled down.

      At the very least that is a signal from the judge that he felt the prosecution had proven the case. Judges may not do that.
      In a jury trial, Juries decide guilt and innocence. Judges decide questions of law. The Judge decided this one wrong, And that error could have prejudiced the jury.

      Regardless, the argument “our system of justice is not perfect” – in NOT an argument for legal and due process violations on the part of the court. It is an explanation as to why Juries must decide cases with imperfect and contradictory information.

      Two witnesses tell different stories – the jury must decide who to beleive.
      But when the court makes and error of law – the defendant gets a new trial.

      Do you doubt that the outcome will be the same ?3

      1. No it is literally arround the corner.

        We are already seeing people starting to defend themselves and their property because the government can or will not.

        And we are seeing not just the extreme left – but much of the media and alot of ordinary democrats who are OK with government failing at a basic duty – protecting people, their rights and their property.

        Protest is OK. Threats, violence, looting, arson are NOT, and it is the DUTY of government to stop and prosecute those.

        1. I wrote, “Vigilantism is figuratively right around the corner.”

          John Say wrote, “No it is literally around the corner.

          We are already seeing people starting to defend themselves and their property because the government can or will not.”

          Do you actually think that protecting yourself or your property is vigilantism? No John, that’s not vigilantism it’s responsibility.

          The responsibility to protect property is that of the property owner with the help of the tools available to us and that includes things like deterrent alarms and police. It’s our individual responsibility to protect ourselves and our families and sometimes police can help with that. It’s the responsibility of law enforcement to try to be there to deter crime, catch criminals after the fact, and the justice system prosecute criminals after the fact and these things help maintain a civil and safe society for all. Law enforcement cannot be everywhere a law is broken. Law enforcement cannot be everywhere a business is destroyed. Law enforcement cannot be everywhere a person is assaulted. Etc, etc.

          That said; I think we can completely agree that when law enforcement knowingly allows riots and mayhem to take place without properly deterring it THAT is law enforcement or government failing at their duties.

          Vigilantism: law enforcement undertaken by an individual or a group without legal authority.

          Seeing people protect their property and themselves is not vigilantism. If we see people starting to track down and apprehend those they think are criminals especially when immediate punishment is inflicted upon those they catch, THAT would be vigilantism.

          1. “Do you actually think that protecting yourself or your property is vigilantism?”

            I doubt we are on different sides of this. You cite one definition of vigilantism. When government fails to defend your person or your property and you are forced to that is vigilantism.

            If you do not think so – does not matter – the left is already saying that it is. We are seeing numerous instances of people being prosecuted for defending themselves or their property.

            I am deeply disturbed, we are literally living in 1984.

  2. It did sound a little like: “We gave him a fair trial. Now we need to hang him.”

    Better to summarize the evidence that was presented and let juries decide than to tell them how to vote. But Ford got off here on a technicality.

    1. Ford gets a new trial where the prosecutor is not allowed to lie, because the prosecutor lied in the first trial and the judge did not correct the lie. The notion of innocence till the jury decides otherwise was in effect, something the prosecutor denied to the jury.

      Calling a prosecutorial lie a “technicality” is ridiculous. Why should the State Bar not charge the prosecutor for lying during the trial?

      1. Lets not overstate things. This is NOT a “lie”. This is an error regarding the law.

        The prosecutor engaged in hyperbole in his closing statement, and the court allowed it. That hyperbole misrepresented the legal standard for quilt and granting a new trial is appropriate.

        This prosecutor will have to explain to his bosses the cost of a new trial – that is punishment enough.

  3. “This idea of this presumption of innocence is over. Mr. Ford had a fair trial. We were here for three weeks where . . . he gets to cross-examine witnesses; also an opportunity to present evidence information through his lawyer. He had a fair trial. This system is not perfect, but he had a fair opportunity and a fair trial. He’s not presumed innocent anymore.”
    ********************
    They can chisel this lengthy epitaph on his career tombstone. What a maroon. Oh funny how no one (not even the judges) ever names this imbecile. Honor among thieves, I guess.

    Here’s the money shot from the Court gently eviscerating our little Javert, in waiting:

    In stating that the presumption of innocence was now
    “over,” the prosecutor misstated federal law. The
    presumption of innocence is “the undoubted law, axiomatic
    and elementary”; the presumption of innocence is “vital and
    fundamental.” Coffin v. United States, 156 U.S. 432, 453,
    460 (1895). The presumption is “a basic component of a fair
    trial under our system of criminal justice.” Estelle v.
    Williams, 425 U.S. 501, 503 (1976). Its “enforcement lies at
    the foundation of the administration of our criminal law.”
    Coffin, 156 U.S. at 453; see also Reed v. Ross, 468 U.S. 1, 4
    (1984).
    The Supreme Court has repeatedly made clear that
    criminal defendants lose the presumption of innocence only
    after they have been convicted. See, e.g., Herrera v. Collins,
    506 U.S. 390, 399 (1993) (“Once a defendant has been
    afforded a fair trial and convicted of the offense for which he
    was charged, the presumption of innocence disappears.”)
    (emphasis added); Delo v. Lashley, 507 U.S. 272, 278 (1993)
    (“Once the defendant has been convicted fairly in the guilt
    phase of [a capital] trial, the presumption of innocence
    disappears.”) (emphasis added); Betterman v. Montana,
    136 S. Ct. 1609, 1618 (2016) (a conviction “terminates the
    presumption of innocence”)

      1. Wouldn’t be be so bad except they don’t understand what they cherry picked.And have zero understanding of anything to do with US Culture and living in a Constitutional Republic. Here’s come some more social promotions.

      2. This is not “cherry picking”. The real problem here is not the prosecutors statements – it is that the Judge overruled the defenses objection.

        The evidence presented to a jury is whatever it is. The jury must decide if it is enough.

        But the legal standards given to the jury MUST be absolutely correct – they are NOT the domain of the jury to decide on their own.

        A new trial is a small price to pay to protect the integrity of the process.

        There are certain things that must be done correctly at a trial – one of those is that the legal standards MUST be accurately provided to the jury. The LAW must be delivered correctly. There is no room for error in those. This is not cherry picking.

        The facts of the case are what they are. The Jury gets to decide if they beleive they rise to the standard of proof beyond a reasonable doubt. But that is the standard they must be given – and ONLY that standard. The Jury can not be given conflicting information regarding legal standards – especially the standard of proof.

  4. The presumption of innocence ends when the defendant admits guilt. Some defendants have admitted that they killed some human when they leave their fingerprint on the life stuck in dead guys chest.

    1. False. more than admission of guilt is needed. Proof of Guilt is required before that starting with probable cause. Recall when the democrats slammed through the last extension of the Patriot Acts’s Terrorist Provisions. Retaining ‘suspicion of terrorism and adding suspicion of supporting terrorism late in 2015. Which automatically curtailed all civil rights exempting NO citizens, not even the Congress. But then who knows what’s in the classified portions. So far President Trump hasn’t used it or more properly his administration hasn’t used it. So maybe the far left is correct if you take into account the new provisions of the Patriot Act.

      Oh yes I did see something one time a year or so ago about sunset act but there again do you know what’s in the classified portions?

    2. False. There are about 2000 people on the “exonerated” list. That is a project that started about 20 years ago to reverse the convictions of convicts who are ACTUALLY INNOCENT. The Exonerated project does not take cases over legal loopholes. They will not take a case unless they are convinced you are innocent, and they will not continue an appeal on a “technicality” those are the conditions of representation by the exoneration.

      Of those 2000 people exonerated. Almost every single one confessed at some point.

      Just to be clear that is 2000 people who beyond any doubt DID NOT commit the crime they were convicted of, and yet they still confessed at some point.

      Many but not all exonerated reversals are the result of DNA evidence proving another person committed the crime.
      Regardless the standard is actual innocense. Not merely an unfair trail as in this case.

  5. Sorry, but I am not seeing the problem here. Clearly the prosecutor was not talking a concept of presumption of innocence, but the actual application of that concept in this case. As in, “he was given the presumption of innocence but that presumption was overcome.”

    Squeeky Fromm
    Girl Reporter

    1. The law is not obvious to the layperson, it’s not obvious to lawyers either. And to the casual observer it’s not about truth. It’s merely the best a bunch reasonably clever people can come up with to deal with problems from stupid accidents to criminal masterminds.

      1. The law MUST be obvious to the lay person.

        The truism “ignorance of the law is no excuse” rests on the assumption that the law is rooted in moral foundations of right and wrong that each of us knows intuitively.

        We might not know the difference between 1st and 2nd degree murder, but we know that the unjustified killing of another is wrong.

        Just as the prosecutor and judge must know that convicting an innocent person is wrong, and that the standard is proof beyond a reasonable doubt.

    2. No one including you gets to “interpret” or mind read the prosecutor’s intentions.

      Was the prosecutor’s statement T or F? It was False, period, full stop. The prosecutor’s “rhetorical effects” are irrelevant when his statement is false. Lawyers don’t get to lie in court then justify it later by saying they only had “rhetorical” intent. If a lawyer states something true, he can claim rhetorical effect all day. When he lies he should be suspended or permanently disbarred.

      The surviving family should sue him for emotional distress for ruining the case.

      1. Correct, We do not need to look to the prosecutors mind – merely his words.

        He stated an incorrect standard for conviction and the court refused to correct when the defense asked.

    3. If you do not see the problem – then I hope you are never on a jury.

      The BIG proplem is not the prosecutors statements, but the Judge not upholding the objection.

      The right to a fair trial does NOT mean a right to a perfect investigation. Or perfect facts or perfect witnesses.

      But it DOES require that the courts follow the law near perfectly.

      I would note – this particular type of appeal and reversal is not so uncommon as you think.

      We have a local case that resulted in a new trial because the prosecutor made several bible quotes about guilt and the defence objected and the judge allowed them in.

      The prosecutor in this case knew or should have known he could not say this.
      The judge should have known that he could not allow the prosecutor to say it.

      The judge actually had multiple opertonities to correct, and did not.

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