Due to being knee-deep in an eighty-page appellate brief, I didn’t have an opportunity to cover the latest (and one of the few) victories for the defense bar. Last week, the Court of Criminal Appeals reversed the conviction of a Nashville man sentenced to serve nearly ten years in prison for three counts of aggravated sexual battery. The child had very few details of what happened to her or when it happened – she was unable to identify the man that allegedly touched her. In State v. Robinson, the CCA reversed after a finding that persistent prosecutorial misconduct prevented Mr. Robinson from receiving a fair trial.
“The Due Process Clause of the 5th and 14th Amendments to the United States Constitution and Article I, section 9 of the Tennessee Constitution affords the Defendant the right to a fair trial free from improper comments by the prosecutor during closing argument.” United States v. Gonzalez-Lopez, 548 U.S. 140 (2006); Johnson v. State, 38 S.W.3d 52 (Tenn. 2001).
To truly achieve justice, child sex prosecutions require an even-tempered prosecutor and a zealous defense attorney. Accusations involving children are the type that prompt people to pick up pitchforks and grab Molotov cocktails – no one likes a child molester. So let’s talk about State v. Robinson.
In Robinson, the child, B.C. was seven at the time of the incident. The date and year of the first allegation of sexual battery is unknown. The second date is alleged to have occurred on February 5, 2012. On that date, Mr. Robinson, who had been a groundskeeper in an apartment complex, was out working when B.C. rode her bike over to him. B.C. said she pulled her pants down, he touched her privates, and then gave her a dollar – which she lost. B.C.’s mother came out to look for her and after not finding B.C. where she was supposed to be riding her bike, became upset. B.C.’s mother immediately asked her if Mr. Robinson ever touched her. B.C. testified she was afraid that she would get “whupped” by her mom, who appeared mad that B.C. wasn’t riding her bike where she was supposed to. Notably, the area where this alleged touching happened was in the middle of an apartment complex where tenants frequently walked their dogs; multiple windows looked down onto the area.
The behavior exhibited by the prosecutors in this case was completely inappropriate and as a result, the CCA held that they committed non-structural reversible error. The prosecutors made derogatory remarks about defense counsel, bolstered the credibility of their own witnesses, repeatedly asked jurors to “send a message,” and inserted issues not in the record in an attempt to secure the conviction they so desperately wanted. The prosecutors’ “persistent pattern” of comments resulted in cumulative error. Here’s a sample:
THE STATE: What in the hell was he doing behind that apartment building. What were they doing. If they weren’t doing what B.C. said they were doing, what were they doing, because he hasn’t offered any explanation for that through any of his witnesses.
DEFENSE COUNSEL: Objection, your Honor. If I may approach on this occasion?
STATE: It’s closing argument.
THE COURT: I know what it is. All right. Let’s approach.
DEFENSE COUNSEL: No, no. I don’t want to make a speaking objection.
THE STATE: Mr. Robinson obviously doesn’t have to testify. Everybody knows that, right. We have all been told that since jury selection. I’m not talking about his testimony. I’m talking about the witnesses from the witness stand. He chose to put on proof, and he didn’t offer you any proof from any of those witnesses as to what else was going on and what he was doing with B.C.
THE STATE: Here’s what we do, Ladies and Gentlemen. We put out public service announcements to tell children to tell if something is happening to them. Because sexual abuse occurs in private. It doesn’t happen in the open eye, that’s true, but it certainly can happen in public places. And we worry about that. It happens with coaches at ball fields. [Defense counsel] talked that. We tell them to tell because we are worked about the youth pastor at church. Right there in church in the middle of everybody. We are worked about the teacher at school. We are worked about the Boy Scout leader, the Girl Scout leader. We tell them to tell because we know that it happens right under our noses all of the time. And the only way we are going to know about it is if they come forward and give us the information. That’s it. They have a right to be believed. And, you know, we don’t what is happening to them if they don’t tell us.
It’s important to note that it is really difficult for an attorney to find their feet and object during opposing counsel’s closing argument (that’s when all the egregious statements were made in Mr. Robinson’s case). Objecting in closing argument makes you feel like a jerk – and you certainly wouldn’t want someone objecting while you made your argument – there’s a feeling of reciprocity. However, objecting is critical to cutting off this type of behavior and preserving the record for appeal. In these types of cases, where a prosecutor is urging the jury to convict based the vague descriptions of a child with a “guileless heart,” someone has to remove the emotion and focus on the facts. That someone is the defense attorney.
P.S. – The CCA opinion is this case is extremely well-written. Its covers all of the bases – from plain error analysis to constitutional and non-constitutional error. Read the full opinion HERE.
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