The Kickham Comment - Boston Criminal Attorney Blog
This case is an interesting example of the importance of prosecutors – and defense counsel – taking care to watch what they say in their closing arguments to a jury, and of how a case can go awry in the last minutes of trying it.
In Berkshire Superior Court last year, a jury handed down a guilty verdict in a rape, assault and battery, and kidnapping case. Regrettably, rape cases are tried frequently in Massachusetts, and this case didn’t seem like any major exception. Except that in this case, the prosecutor went a little too far in his closing arguments. Non-lawyers usually don’t know this, but attorneys in criminal (and civil, for that matter) cases cannot just say’ anything they want’ to a jury, in their opening and closing arguments. Rather, opening and closing arguments must be limited to the evidence and the facts, and avoid inferential or suggestive comments to the jury. (Forget what you usually see on TV.) Sometimes, that line can be a hard one for a trial judge to find, but this case serves to better illustrate where that line is, in criminal cases.
In a ruling issued by the Massachusetts Appeals Court on September 1, the court vacated (meaning, disallowed) the rape ,assault and battery, and kidnapping convictions against one David E. Garcia, who was convicted in 2008 for the May 2006 rape, kidnapping, and assault and battery of his girlfriend, who at the time was 22. Because of a lengthy criminal history, Garcia was sentenced to 10 to 12 years in state prison. That’s one long stretch in a pretty unpleasant place. In trial testimony, the woman told the court that Garcia raped her after an argument over his allegedly cheating on her with another woman. The victim testified that Garcia would not let her leave his home, nor would he let her use the phone, at varying times hitting her and punching her during the ordeal. According to testimony, Garcia did not bring her home until the next day. (In case you’re wondering, the defendant’s act of not allowing the victim to leave the house is what constituted the kidnapping charge and conviction. Again, forget what you think you know about “kidnapping” from TV shows and movies, where only strangers “kidnap” someone.) Garcia acknowledged all of the above, but claimed that the sex was consensual.
The Appeals Court’s ruling concluded that the trial jury was tainted by the prosecutor’s call in his closing arguments to “vindicate” the victim, among other comments he also made to the jury. According to the Appeals Court’s ruling, at one point in the case, the prosecutor indicated the woman had been “revictimized” by having to recount her story to police and in court, saying “Talk about revictimization – how many times did she have to tell that story?” The prosecutor further told the jury that “your guilty verdicts today will acknowledge and affirm that what [the victim] said, what she did, how she acted, how she reacted, will be accepted and understood.”
Citing case law in this area, the Appeals Court ruled “The prosecutor’s closing argument, ‘was the equivalent of an exhortation that the jury had a duty to the victims to render verdicts of guilty.’ ” Additionally, the court ruled that the trial judge did not take strong enough action, after those comments were objected to by defense counsel, to warn jurors that they must refrain from allowing emotions or sympathy enter into their deliberations. That will likely put a lot of trial judges on alert to pay careful attention to attorneys’ oral arguments to a jury.
A few prosecutors I’ve spoken with feel that this ruling too tightly constrains what they can and can’t say to a jury. As a Massachusetts criminal defense lawyer, I can understand that frustration, but the more both sides – prosecution and defense – stick to the facts and the evidence in their arguments to a jury, the more likely it is that a just verdict will result.