People v. Jones, 2016 IL App (1st) 141008 (October). Episode 257 (Duration 6:59)

Big problems with this prosecutor's opening statement.

What They Said

The State began its opening statement as follows:

“The greatest danger that a police officer can face during his tour of duty is a gun and a criminal who’s willing to use that gun to shoot and kill that police officer. Ladies and gentlemen, each of your juries has sitting before you one such criminal…“[The police] learned that behind that door were two cold-blooded criminals who had reasons to keep those police out…[Y]ou must remember the criminal controls the crime scene. These two defendants were in that house for quite some time with that evidence before they ultimately came out.”

And finally, the State concluded:

“The law recognizes that what one criminal may not be brave enough to do alone, two criminals just might be. So it’s as if defendant Jones had his finger on that trigger as did defendant Thomas. Criminals work together and they are equally responsible for crimes they commit.”

Defense counsel objected, the judge told to the jury to disregard it, and the prosecutor just kept calling them “criminals.”

Derogatory Comments

Courts have decried the use of derogatory and pejorative terms used to describe the defendant.

Comments intending only to arouse the prejudice and passion of the jury are improper.

Is Reversal Required?

Reversal is required only if the “comments engender substantial prejudice against a defendant such that it is impossible to say whether or not a verdict of guilt resulted from them.

Stated differently, if the jury could have reached a contrary verdict had the improper remarks not been made, or the reviewing court cannot say that the prosecutor’s improper remarks did not contribute to the defendant’s conviction, a new trial should be granted.

Analysis

The reviewing court said the State’s opening statement was premised on its characterization of Jones as a “cold blooded criminal” facing off against police officers.

Defendant was in a home about to be searched by police when the codefendant shot a shotgun at the door injuring 3 officers.

This argument, which did not belong in an opening statement under any circumstances, conjured a powerful image calculated to invoke an emotional response.

No Convictions

Certainly, the characterization had no basis in fact, given that prior to this case, Jones had never been convicted of a crime.

Thus, there was no basis for the State’s references to Jones as a criminal other than to inflame the passions of the jury.

Repetition

Additionally, the State’s repetition of the “criminal” pejorative throughout its opening statement effectively nullified the effect of the court’s instruction to disregard the State’s characterization of defendant as well as its admonishment that opening statements were not evidence.

The Evidence Not Overwhelming

Also relevant to the prejudice inquiry is the fact that the State’s evidence in this case, while undoubtedly sufficient to convict, was not overwhelming.

The only evidence that Jones was involved in the shooting were the statements of other people in the house to the police and the grand jury that Jones told his codefendant to shoot.

These statements were disavowed at trial.

This relatively thin evidence makes it more likely that the jury was over-persuaded by the State’s description of Jones as a criminal, and therefore a bad person deserving of punishment.

Prosecutors Been Warned

The Illinois high court has warned that threats of reversal, and words of condemnation and disapproval have been less than effective in curbing prosecutorial misconduct.

This reviewing court had no problem reversing, where it felt the State’s misconduct required it to do more than merely express disapproval.

Holding

Reversed and remanded but not before the original trial judge was bench slapped and removed from the case for being biased and without dignity nor courtesy at the sentencing hearing.

The trial court really took issue with defendant's statements that he was worried about his kids. The trial court then made derisive comments intended to malign the entire class of criminal who has kids.