Another prosecution error in argument

As people know, I follow closely issues of improper prosecution argument.  Trial counsel’s arguments present an opportunity for significant error and perhaps a new trial.  Well, this snapped my head when first read.

Appellant, a married African-American adult of 27 years, raises a complaint under Grostefon which merits discussion. He asserts government counsel referred to him in a racially offensive manner by calling him “boy” twice. Specifically, appellant characterizes as racial epithets government counsel’s remark in closing, “This old boy was ‘Courtin’ n Sparkin’.’” (quotations in original), and subsequent argument in rebuttal, “And they keep harping on the fact that he’s not a big-ole boy.”

We have carefully considered the context surrounding counsel’s use of the word, “boy,” noting our nation’s highest court’s view thereof: “Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.” In this case, appellant was elsewhere described as acting as if he had an immature crush on SPC PK, and we are confident in concluding that this—rather than “racial animus”—was the backdrop for the comments.

Notwithstanding this judgment and our associated conclusion that appellant has not demonstrated plain error, we invite counsel to more deliberately choose their words.

United States v. Dixon, CCA No. 20140619 (A. Ct. Crim. App. 23 May 2016).

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