In State v. Akok, 2015 UT App 89 (16 April 2015), the Utah Court of Appeals reversed a conviction for rape because of a prosecutor’s improper references in argument to the jury. This is the final part of the prosecutor’s rebuttal closing argument:
And when you look at the totality of the evidence it is very clear that [Defendant and the codefendant] engaged in sexual intercourse and touched her without her consent. They took advantage of a very vulnerable victim. Don’t let them take advantage of it again. Thank you.
(My emphasis.)
The appellate court found these two bolded sentences to be so objectionable as to warrant a new trial. They improperly appealed to the juror’s emotions by suggesting that they had a duty to protect the victim (and perhaps women generally) from the defendant. In other words, the statement called on the jury to assume the responsibility of ensuring the victim’s safety. These sorts of statements divert the jury’s attention from its legal duty to apply the law to the facts.
One wonders how the in-vogue “Reptile” arguments (appealing to community safety “rules”) would fare under this analysis.
Another interesting point is that after the defense counsel’s objections, the court gave a corrective admonition that emphasized that closing arguments were not evidence. The Court of Appeals found this to be insufficient– the trial judge should have specifically referenced the problem statements in its admonition to the jury.
Given all the circumstances, the appellate court found the remarks to be so prejudicial as to warrant reversal for a new trial.
***
Note- I am in the process of rewriting my paper on improper argument for a presentation that I am making on May 20th in Cedar City with Judge Mark DeCaria for the Annual Meeting of Utah District Court Judges.
