Inflaming the jury with a gory, hypothetical crime

I am reviewing the Missouri Supreme Court's 1997 ruling that upheld Reginal Clemons' conviction for muder and his death sentence. Yesterday a warrant was issued for his execution; he is scheduled to "suffer death" on June 17.

Clemons' case has long been covered as a textbook example of prosecutorial misconduct and the miscarriage of justice. The following excerpt from the 1997 ruling includes a choice quote from prosecutor Nel Moss. Check out the over-the-top, inflammatory language he uses as an exmaple to the jury.

The girls who died fell to their death from a bridge, they were not knifed; and there is no physical evidence that they were raped at all, let alone at knifepoint.

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Appellant claims that the prosecutor discussed a hypothetical crime in order to inflame the jury, and that defense counsel should have taken steps to prevent this highly prejudicial hypothetical from reaching the jury's ears. The prosecutor [Nels Moss] said:

MR. MOSS: The man (Clemons) was co-equal with Mr. Antonio Richardson who pushed them off and Mr. Gray who organized it ... If you look at the evidence, that's what it is. Let me give you an example. What would you do if you had these ... two girls and the fellow outside of a room, and he raped them, both of them, he robbed the guy, and the other guys raped them, and it's at night, and so they send the girls into the dark.

MR. MOSS: Save my time.

MR. CONSTANTINOU: Just a minute, Your Honor, he's mischaracterizing the evidence, it's not something that's been introduced.

THE COURT: Proceed. Overruled, proceed.

MR. MOSS: The rape is outside this room and then you send them into a dark room. Okay? All of these three -- of these people in a dark room. And Mr. Antonio Richardson goes into that dark room with a knife. And Mr. Clemons goes in there with a knife, and Mr. Gray and Mr. Winfrey stand outside; and the door is closed; and it's dark, nobody can see anything

And when all is said and done, you open the door, and Tom Cummins is not dead, but he's laying there knifed.

And Julie Kerry is laying there dead, with ten stab wounds in her; Robin Kerry is laying there dead with ten stab wounds in her. Okay? What do you know? Tom Cummins can't say, because it was dark, who put the ten stab wounds in Julie, who put the ten stab wounds in Robin, or who put the stab wounds in him.

But you know darn good and well the only two people who walked into that dark room with a weapon and the knives, you know, in fact, were him and the other guy. So what are you going to say? Okay? You got a bonus if you had a light bulb on, it would have made a difference. But we're going to distinguish now because we really don't know. It don't piecemeal out like that, when these fellows work together like
that.

Appellant argues that this argument rendered his trial unfair because it misstated the basic tenets of accomplice liability; it was not remotely based on the evidence at trial; and was irrelevant to any issue presented at trial. While appellant correctly observes that his counsel did object early on in the particular argument at issue and was overruled, appellant contends that this objection was constitutionally insufficient, and that counsel should have continued to object as the prosecutor's hypothetical grew more egregious.

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Image from Jamie Voetsch.