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




A. The Pervasiveness of the Problem

Even if United States v. Weiss were only an isolated instance of justice miscarried as a result of prosecutorial appeal to racial or ethnic bias, it would behoove this Court to grant a writ of certiorari to ensure Weiss' constitutional right to a fair trial. Sadly, though, this is by no means all that exceptional a case. What happened here happens shockingly often in federal and state courts across the United States -- making it all the more imperative that this Court grant Weiss' petition.

Consider the following sampling of relatively recent reported cases of improper prosecutorial appeals to racial prejudice (see generally B. Gershman, Prosecutorial Misconduct, Sec. 10.2(d) (1985)):

-- United States v. Doe, 903 F.2d 16, 24 (D.C. Cir. 1990): "[W]hat is happening in Washington, D.C. is that Jamaicans are coming in, they're taking over the retail sale of crack... people just like this just like this."

-- United States v. Hernandez, supra, 865 F.2d at 927: "Each of you by the verdict that is represented by the evidence will send a clear message to Cuban drug dealers..."

-- McFarland v. Smith, supra, 611 F.2d at 416: "[T]he fact is that Officer Dorman is black and the Defendant is black... If [Officer Dorman] is lying she is lying against a member, a person that is black... a member of her own race. You use your common sense about that."

-- Withers v. United States, 602 F.2d 124, 125 (6th Cir. 1979): "Not one white witness has been produced in this case that contradicts [the victim's] position in this case."

-- Miller v. North Carolina, 583 F.2d 701, 704 & at n.3 (4th Cir. 1978): "She told you that each of these black men had intercourse with her and that they passed the knife from one to another... Don't you know and I argue if [consent to intercourse] was the case she could not come in this courtroom and relate the story that she has from this stand to you good people, because I argue to you that the average white woman abhors anything of this type in nature that had to do with a black man. It is innate within us..."

-- Kellv v. Stone, 514 F.2d 18, 19 (9th Cir. 1975): "[M]aybe the next time it won't be a little black girl from the other side of the tracks; maybe it will be somebody that you know... And maybe next time he'll use the knife."

-- United States v. Sanchez, 482 F.2d 5, 8 (5th Cir. 1973) "[B]y golly, he should have enough machismo and chicannismo to take the stand and tell you the truth..."

-- United States v. Horne, 423 F.2d 630, 631 (9th Cir. 1970): "And another thing I am tired of: Is [defense counsel] trying to let these people hide behind their race?"

-- United State v. Grey, 422 F.2d 1043, 1045 (6th Cir.), cert. denied, 400 U.S. 967 (1970): The prosecutor asked a black defendant's character witness whether he knew that the defendant was "running around with a white go-go dancer."

-- Weddington v. State, 545 A.2d 607, 610 (Del. 1988): "Mr. Weddington, isn't it true that you got Blue and Henry to go up to Indiana with you because you told them there was some loose white women up there?"

-- State v. Belgarde, 755 P.2d 174, 175 (Wash. 1988): "I remember Wounded Knee, South Dakota. Do any of you? It is one of the most chilling events of the last decade. You might talk that over when you get in there. That was the American Indian Movement. That was a faction of the American Indians that were militant, that were butchers, that killed indiscriminately Whites and their own."

-- People v. Thomas, 129 A.D.2d 596, 597 (N.Y. Sup. Ct. App. Div. 2d Dept. 1987): "I would submit to you that if three white males jumped out of a green Plymouth Volarie in this neighborhood and ran up to you you might, you just might tend to think these are not muggers, these could be police officers."

-- People v. Walker, 66 A.D.2d 863, 864-65 (N.Y. Sup. Ct. App. Div. 2d Dept. 1978): "Teddy is trying to save face. He broke the code of the Negro community, two women in one town. That's a no-no... You want to talk, but the big man comes in, a big man who's above the code of the community. These rules don't apply to me. They apply to the niggers."

-- Commonwealth v. Graziano, 331 N.E.2d 808, 813 (Mass. 1975): "We've even got the godfather in this case. The godfather, we've got the wedding, we've got every part of it."

Some of these cases resulted in a new trial. Others did not. In each of them, though, the appellate court found the prosecutor's rhetoric improper. If nothing else, the picture that clearly emerges is that although it has long been a matter of hornbook law that racially biased prosecutorial presentations are a violation of due process, such presentations continue at an alarming rate. What was true twelve years ago when the Second Circuit cautioned that "the evils of racial prejudice lurk too frequently throughout the administration of criminal justice, McFarland v. Smith, supra, 611 F.2d at 419, is certainly no less true today.

It is especially reprehensible when those evils are instigated by a government official. As this Court has observed:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done... It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, supra, 295 U.S. at 88. Or, as the Eleventh Circuit has articulated the point, our review of alleged errors in argument must be informed by an awareness that the prosecutorial mantle of authority can intensify the effect on the jury of any misconduct." Brooks v. Kemp, 762 F.2d 1383, 1399 (llth Cir. 1985).

Granting Weiss' petition for a writ of certiorari will afford this Court an opportunity to speak firmly on this sensitive issue, and to delineate clear guidelines for courts to determine the presence of prejudicial racial or ethnic bias in prosecutorial rhetoric. If courts can conclude, as the majority did here, that allusions to negative stereotypes can fall 'within the bounds of proper argument,' the need for such guidelines becomes painfully apparent.

B. Conflicts Among the Courts

Granting Weiss petition may also enable this Court to resolve a number of troublesome conflicts among courts that have considered cases of this type. As one commentator has noted:

The background legal standard is a simple one: the prosecutor may not appeal to racial prejudice during the course of her argument or presentation of a case. To do so would violate the defendant's right under the due process clause to a fair, unbiased trial.

Though courts agree on this background legal standard, the way in which they apply the standard in various contexts reveals tensions regarding the proper approach to racial discrimination and prosecutorial conduct at trial... A second tension concerns the remedy granted when prosecutorial bias is found.

Note, Developments in the Law - Race and the Criminal Process, 101 Harv. L. Rev. 1472, 1588-89 (1988) (footnotes omitted; emphasis added).

(i) Measuring the Likelihood of Prejudice -- "Probability" vs. "Potential":

Among the first category of "tensions" -- those that relate to the determination of the presence or absence of prejudice -- the one most clearly applicable to this case concerns the standard to be applied in measuring the likelihood that the prosecutor's statements were prejudicial.

As noted above, the majority below relied on the standard set forth by the Second Circuit in United States ex rel. Havnes v. McKendrick, supra, 481 F.2d at 159: "probability of prejudice we believe to be the correct test when the evidence of guilt as in this case is not overwhelming." [Emphasis added.] The Seventh Circuit, in contrast, has spoken in terms of improper prosecutorial rhetoric that "would have a great potential for prejudice," Brooks v. Kemp, supra, 762 F.2d at 1413 [emphasis added]. (See also id. at 1403 n.29 -"Such statements inject irrelevant and possibly prejudicial matter into a jury's deliberations..." [Emphasis added.].) There is a considerable distance, amici submit, between "potential'" and "probability" -- a distance that may affect the outcome of this very case.

(ii) Requiring a New Trial Without a Specific Finding that the Error Was Not Harmless:

The second "'tension" noted above -- relating to the appropriate remedy when there is a determination of improper appeal to bias may also affect the outcome of this case. The specific question is whether the injection of prejudice requires automatic reversal, or whether it is governed by the "harmless error" doctrine.

At least one court has held that harmless error analysis must be applied whenever the prosecutor's rhetoric injects racial bias into the jury's deliberations. United States v. Doe, supra, 903 F.2d at 27-28 (finding that government had not met its burden of proving beyond a reasonable doubt that prejudicial prosecutorial remarks were harmless). See also United States v. Parker, 877 F.2d 327, 332 (5th Cir. 1989). Other courts have held that automatic reversal is the proper remedy. Miller v. North Carolina, supra, 583 F.2d at 708; Weddington v. State, supra, 545 A.2d at 614-615. Yet other courts have taken note of the issue without expressly deciding it. United States ex rel. Haynes v. McKendrick, supra, 481 F.2d at 161; Carter v. Rafferty, 621 F. Supp. 533, 546 (D.N.J. 1985), aff'd on other grounds, 781 F.2d 993 (3d Cir. 1986).

The theory for requiring automatic reversal is that arguments appealing to racial bias necessarily strike at the heart of the defendant's right to an impartial jury. "Racially prejudicial remarks are... so likely to prevent the jury from deciding a case in an impartial manner and so difficult, if not impossible, to correct once introduced, that a good argument for applying a more absolute standard may be made." United States ex rel. Haynes v. McKendrick, supra, 481 F.2d at 161. Indeed, "current studies lend empirical support to the contention that arguments designed to invoke racial stereotypes will have a pervasive influence on the jury." Note, Arguments Appealing to Racial Prejudice: Uncertainty Impartiality and the Harmless Error Doctrine, 64 Ind. L.J. 375, 385 (1989). See also Note, Developments in the Law - Race and the Criminal Process, supra, 101 Harv. L. Rev. at 1594-95. Stated simply, when the thirteenth juror is present in the jury chamber, there exists a "structural defect[ ] in the constitution of the trial mechanism, which def[ies] analysis by 'harmless-error' standards." Arizona v. Fulimante, lll S. Ct. 1246, 1265 (1991).

Of course, even if this Court determines that harmless error analysis should apply to cases of prosecutorial appeal to racial prejudice, the specific circumstances of this case may lead to the conclusion that the error here was not harmless -- a conclusion the dissenting judge below in fact reached. 930 F.2d at 203 (Restani, J., dissenting). In either event, this case presents this Court with an excellent opportunity to provide firm guidance to the lower courts on several issues that cry out for definitive resolution.

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