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Weiss v. United States of America
Supreme Court of the United States (1990)


On appeal to the United States Court of Appeals for the Second Circuit, the court's majority agreed that the prosecutor could have chosen his words more carefully," United States v. Weiss, supra, 930 F.2d at 196; and that certain of his statements may have been "undignified and intemperate.'" Id. at 197. Nonetheless, the majority affirmed Weiss' conviction, holding that the prosecutor's statements did not create a "probability of prejudice'" under the standards articulated in United States ex rel. Hanes v. McKendrick, 481 F.2d 152 (2d Cir. 1973), and were within "the bounds of proper argument." 930 F.2d at 196.

The majority reasoned that "the challenged statements allude to The Merchant of Venice only obliquely" and that the title of Shakespeare's play refers to its title character, Antonio, and not to Shylock, the villainous Jew." Id. And, "[b)ecause we are satisfied that the challenged statements do not rise to the level of a constitutional error, we need not address the question left open in Haynes - whether harmless error analysis should apply where a prosecutor improperly injects racial considerations into a case." Id. at 196 n.5.

Judge Restani dissented. She found most troubling the majority's "finding that the prosecutor's opening and summation did not improperly invoke religious or ethnic prejudice." Id. at 202. Judge Restani concluded that the prosecutor's persistent allusions to ethnic stereotypes were clearly improper:

[T]he context of the remarks, from the opening statement likening the trial to a book, through the repeated references to greed, to the summation wherein the title of the book is revealed, seem calculated to raise prejudice. The trial court, however, apparently did not perceive a malicious intent and there is a possibility that the offensive remarks were simply ill-considered. But regardless of the prosecutor's intent we must have concern for what message the jury received... [W]e must assume that a prejudicial message was received. (Id. at 203.)

Taking note of the unresolved constitutional question whether racially prejudicial prosecutorial statements should be governed by the harmless error doctrine or should be cause for automatic reversal, the dissenting judge concluded that the error in this case was in any event not harmless. The evidence against Weiss, Judge Restani observed, was not overwhelming; and "the probability that the jury received a message of ethnic and religious bias" may well have affected their verdict. Id.

On June 10, 1991, Weiss petitioned this Court for a writ of certiorari.

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