Imagine A Reversal

The Vermont Supreme Court reversed a criminal conviction in a lewd behavior against a minor case in light of the improper closing argument of the prosecutor

Viewed in their entirety, the prosecutor’s statements—exhorting the jury to imagine “what it would be like to be A.R. . . . poor . . . maybe hungry”—exceeded the bounds of fair and temperate discussion, circumscribed by the evidence and inferences properly drawn therefrom. By the prosecutor’s own admission, there was no testimony presented at trial that A.R. was “hungry,” and the bald invitation for the jury to consider this speculation was improper.  The effect of such statements was not only to interject facts of little or no relevance to defendant’s guilt or innocence, but also to prejudicially play upon the jurors’ natural sympathy for the victim, a risk made more potent by the prosecutor’s exhortation to the jury to “think, again, what it would be like” to be A.R.  “This Court has often condemned arguments made to the jury in which the prosecutor makes inflammatory statements or appeals to the sympathies of the jury.”  State v. Bubar, 146 Vt. 398, 403, 505 A.2d 1197, 1200 (1985); Duchaine v. Ray, 110 Vt. 313, 321, 6 A.2d 28, 32 (1939) (noting that counsel’s urging of jurors to place themselves in victim’s shoes was a “highly improper,” “lamentable departure” from rule against appeals to jurors’ prejudice).

The court could not conclude that the statements were harmless beyond a reasonable doubt. (Mike Frisch)