9th Circuit reverses a conviction based on prosecutor’s closing argument.

In Ford v. Perry, the court set aside a conviction based on improper comments of the prosecutor during closing argument.

During closing arguments, Ford’s lawyer offered a classic criminal defense that contradictions of witnesses and doubt over the identity of the shooter meant that the presumption of innocence had not been satisfied.  The prosecutor then decided to dispense with the whole presumption:

“This idea of this presumption of innocence is over. Mr. Ford had a fair trial. We were here for three weeks where . . . he gets to cross-examine witnesses; also an opportunity to present evidence information through his lawyer. He had a fair trial. This system is not perfect, but he had a fair opportunity and a fair trial. He’s not presumed innocent anymore.”

When Ford’s defense attorney objected, the district court overruled the objection and the prosecutor then added “And so we’re past that point.”

The statement by the prosecutor that “this system is not perfect” was an understatement given the abusive closing argument.  The statement ran afoul of Darden v. Wainwright, 477 U.S. 168, 181 (1986), which ruled that prosecutorial statements can violate due process if they “so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.”

The panel found that this is such a case:

“In stating that the presumption of innocence was now “over,” the prosecutor misstated federal law. The presumption of innocence is “the undoubted law, axiomatic and elementary”; the presumption of innocence is “vital and fundamental.” Coffin v. United States, 156 U.S. 432, 453, 460 (1895). The presumption is “a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503 (1976). Its “enforcement lies at the foundation of the administration of our criminal law.” Coffin, 156 U.S. at 453; see also Reed v. Ross, 468 U.S. 1, 4 (1984).”

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