Improper Argument Dooms Murder Conviction

A prosecutor’s improper closing argument requires the Commonwealth to accept either a reduced verdict or a new trial, according to a recent opinion of the Massachusetts Supreme Judicial Court

It is improper for a prosecutor to characterize a criminal trial as a dispute between a deceased victim on the one hand, and the defendant on the other, and to exhort the jury to dispense justice evenly between them. The deceased is not a party to the case. A criminal trial places the interests of the Commonwealth and the defendant against one another. An argument that asks the jury to give justice to the victim is an improper appeal to sympathy for the victim. The prosecutor’s improper call to justice for the victim was aggravated by his inclusion of the paramedics and the civilian witnesses to the victim’s last moments in his appeal to sympathy. Similarly, the prosecutor’s argument that the victim’s life mattered, and that the victim had a constitutional right to live, were improper appeals to sympathy.

These improprieties were not just fleeting comments or minor aspects of his closing argument, nor were they the type of afterthought that we have said does not require reversal. The improper comments at the end of the closing comprised a structural segment, indeed, the denouement of the prosecutor’s closing.

The court’s denoument

The Commonwealth shall have the option of either retrying the defendant on the murder indictment or accepting a reduction of the verdict to manslaughter, which was the verdict urged by the defendant at his first trial, and which is the verdict he could best hope to obtain after a request for an instruction on reasonable provocation. See Commonwealth v. Howard, 469 Mass. 721, 750 (2014). The Commonwealth shall inform this court within fourteen days of the date this opinion issues whether it will retry the defendant for murder in the first degree or move to have the defendant sentenced for manslaughter. After the Commonwealth so informs us, we will issue an appropriate rescript to the Superior Court.

(Mike Frisch)