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


The conclusion of the majority below that there was no "probability of prejudice" in the prosecutor's repeated allusions to The Merchant of Venice, and in his constant harping on Weiss' alleged wealth and greed, is simply untenable. The circumstances of the case -- the prosecutor's announcement that "the Merchant of Franklin Square" was the "title of the book" of the trial; his use of the "merchant" phraseology no fewer than three times in his summation; his insistent focus on Weiss' alleged greed, the very characteristic that Shakespeare's Shylock has come to symbolize among centuries of haters; the judge's failure to give a curative instruction; and, perhaps most significantly, the explicit reference to The Merchant of Venice by one of Weiss' co-defendants' counsel in his summation to the jury -- lead to the inescapable conclusion that prejudice was injected into the jury's deliberations. Whether it was done deliberately or inadvertently, the bottom line remains the same: Weiss' constitutional rights were violated. (Point I, infra.)

The issue of prosecutorial appeals toracial or ethnic bias arises with surprising frequency. Reported cases abound in which appellate courts across the United States, both federal and state, have had to grapple with improper prosecutorial rhetoric. This case affords this Court a sterling opportunity to speak firmly on this sensitive issue, and to establish clear guidelines that will help both prosecutors and judges avoid this all too pervasive problem. (Point IIA, infra.)

This case presents this Court with the additional opportunity to resolve certain conflicts that have arisen among lower courts that have considered the issue of prosecutorial appeal to racial or ethnic bias. Most notably, the decision below hinges upon the Second Circuit's insistence that the defendant show a "probability of prejudice" arising from the prosecutor's remarks. The Seventh Circuit apparently takes a contrary view; it requires only a "great potential for prejudice." (Point IIB (I), infra.) Another notable conflict this case affords the Court an opportunity to resolve concerns the applicability of the "harmless error" doctrine to racially charged prosecutorial rhetoric; some courts have applied the doctrine, while others have , opted for a rule of automatic reversal. (Point IIB (ii), infra.)

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