A blog of the Philadelphia Bar Association’s Criminal Justice Section

Posts tagged ‘prosecutorial misconduct’

Supreme Court rules on “send a message” in closing argument

By Burt Rose

On Dec. 30, 2009, the Supreme Court of Pennsylvania decided the case of COMMONWEALTH of Pennsylvania v. Neal Lamont PATTON, Appellant, 2009 WL 5126580, No. 34 WAP 2008. This was an appeal from an Order of the Superior Court, No. 2130 WDA 2005, 936 A.2d 1170 (Pa.Super.2007), affirming a Judgment of Sentence of the Court of Common Pleas of Allegheny County. Justice EAKIN wrote an Opinion for himself and Justices BAER, McCAFFERY and GREENSPAN.

The jury convicted the Appellant of first degree murder, and the trial court had imposed a mandatory life sentence. At appellant’s jury trial, the prosecutor, in her closing argument, stated:

“Ladies and gentlemen, I’m asking you to find a verdict of guilty of murder in the first degree and send a message back that [the key witness, who had initially been uncooperative] did the right thing. The system works and it’s right to come forward and tell what happened and the second message I want to send to [the Appellant] is to tell him he can’t get away with murder.”

The Appellant argued that the prosecutor’s “send a message” arguments were per se prejudicial under Commonwealth v. DeJesus, 860 A.2d 102 (Pa.2004), which held “penalty phase arguments requesting that the jury send a message with its verdict are prejudicial per se.” However, the majority here held that the Superior Court had correctly determined that the DeJesus per se rule does not apply to non-capital cases. Justice Eakin ruled that the prosecutor’s remark regarding the witness did not deny the Appellant a fair trial or destroy the objectivity of the jury, preventing it from reaching a true verdict, and the prosecutor’s remark regarding the Appellant was not improper. Therefore, the Appellant was not entitled to a new trial.

Chief Justice CASTILLE filed a dissenting opinion joined by Justice SAYLOR and Justice TODD in which he stated that “it appears that prosecutors still return to the send a message argument. The fact that resort continues to be made to such extraneous concerns suggests that lawyers employing the argument believe it is harmful or powerful enough to be worth the risk. Again, I believe that it is time that this Court send a message of its own to the criminal bench and bar that this rhetoric can no longer be tolerated.”


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