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