Be Careful What You Say

I’m not a huge baseball fan, but I’ll watch when the St. Louis Cardinals are in the playoffs (and, they usually are).

Like many pro sports, baseball permits the players to argue with the umpire–up to a point. But, when a certain line is crossed, the umpire throws a weird hand jester pointing to the exit–and the player is ejected from the game. Even if you know nothing about baseball, you’ll recognize when a player is booted from the game.

What sort of language gets you kicked out of a game?

There are lines in baseball that you don’t cross. A player can say “Hey ump, come on, that wasn’t a strike”. Or even,”that wasn’t a [explitive] strike.”

But, the player cannot say, “Ump, you are an [explitive].” If you complain that the pitch was an [explitive] ball when the umpire thought it was a strike, that’s ok. But if you complain that the umpire is an [explitive], you’ve crossed the line and you’re getting thrown out of the game. Even calling the umpire’s mother a bad name may get you ejected from the game.

Sometimes, a team manager may deliberately get himself ejected from the game, just to rally his players a bit. The same cannot be said in my profession. In criminal defense, saying the wrong thing may get your client convicted. In our case for today, a prosecutor said some things that got a conviction overturned.

Loucrucha Jeansimon was sentenced to 30 years in prison for drug trafficking. As you may have figured out by now, this sentence was overturned because the prosecutor said some things that shouldn’t have been said.

Here are the facts of the case: Jeansimon borrowed someone’s rental car and when the car was searched after a traffic stop, lots of drugs were found. To give you an idea as to how much drugs, well, a small amount gets you a third-degree felony, punishable by up to 5 years in prison. A larger amount assumes that you are a drug dealer, and we call that possession with intent to sell or deliver. That charge gets you a maximum of 15 years prison. Jeansimon was found guilty of drug trafficking, an even larger amount of drugs (by weight), and that can get you a maximum of 30 years in prison.

Jeansimon testified at his trial that the drugs weren’t his, plain and simple. He borrowed the car that the drugs were found in from his sister’s boyfriend, Jay-Jay. Jeansimon did not inspect the car before driving it because he only needed to use it for a few minutes to go pick up his daughter from school.

When Jeansimon took the stand at his trial, the prosecutor asked him “if he spoke to Jay-Jay about the drugs” and “whether Jay-Jay ‘would come in here and claim’ the drugs.” id at 6. Seems like something a prosecutor would ask, right?

The defense attorney objected and asked to approach the bench but the judge overruled the objection and, wouldn’t let the defense attorney approach. Bad move on the judge’s part, because when we defense attorneys ask to approach the bench, we may be able to correct a glaring error before it spirals out of control. This judge refused, and I imagine that the defense attorney then leaned over to Jeansimon and whispered something like “the judge royally screwed up. This will be overturned.” How the judge didn’t let the defense attorney approach at this point is beyond me, but some judges are in such a hurry that they just don’t want to listen to the lawyers. Yes, their job is listening. Yes, their job is to call balls and strikes.

What was so wrong with what the prosecutor said? Well, let’s get back to the basics (See Vince Limbardi, “This is a Football”).

This is THE UNITED STATES OF AMERICA. We have a Constitution. It says that we citizens are innocent until proven guilty.

Who has that burden of proof? The government. The prosecutor.

What happens when the government decides to tell a jury that it isn’t their burden to prove the case, but rather, that it is the defendant’s burden to prove the case? Well, this sounds a lot more like Iran or China, doesn’t it? I’m sure prosecutors in Russia say this sort of thing all the time, and that’s their law, nothing wrong with it.

Remember folks, in the USA, the defendant doesn’t have to prove anything.

We had a judge in Seminole County that, before every jury trial, he would hold up the prosecutor’s “information” charging document and say, “ladies and gentlemen of the jury, it cost the prosecutors about 2 cents to print this piece of paper. It costs them two cents to file this accusation, and the burden is entirely theirs to back up these allegations during this trial with evidence, the defendant may sit and play cards if they wish.”

Yes, it’s really cheap to accuse someone of a crime. Its a lot harder to back up that accusation with evidence.

Ok, back to Jeansimon. Was it was legal for the prosecutor to suggest that Jay-Jay should come to court and claim the drugs? Was it ever Jeansimon’s burden to bring Jay-Jay in to testify? Heck no.

To add insult to injury, this prosecutor misled the jury again by arguing in closing that “Jay-Jay did not have the courage to come in and testify that the drugs belonged to him.” id. Again, whose burden is it?

The appellate court immediately recognized the seriousness of what was going on here, noting that “it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt.” id. at 7.

Stated another way, the prosecutor “cannot comment on a defendant’s failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence.” id.

Just in case the appellate court wasn’t being clear on these last two quotes, they drive the point home again noting that “the line of questioning by the prosecutor and the comment during closing arguments were improper because they suggested to the jury that Jeansimon had an obligation to present evidence when he did not.” id.

The appellate court was really, really, bothered by this, as they should have been. The state’s burden to prove their case is foundational, very basic stuff. When they overturned this 30-year prison sentence, which I’m pretty sure they do not take lightly, they again stated that “the State’s questioning suggested that Jeansimon did not call Jay-Jay or his sister because they could not corroborate his story, calling into doubt the credibility of his only defense. Based on this error, Jeansimon is entitled to a new trial.” id at 9.

Ok, you get the point. There are lines you don’t cross. The state has all the money. The state has all the investigators. The state has all the resources to put a citizen away for 30 years. But, they have all the burden. We citizens needn’t do a thing. Any suggestions that we citizens should somehow bring our own proof is out of line. The burden isn’t ours. Not in this country.

[Side Bar–this case is also about “standing”, because the government claimed that Jeansimon had no standing to challenge the search of a car that wasn’t his, and he wasn’t even on the rental agreement. Searches are all about privacy, and how can you claim a privacy interest in a car you don’t own (Hertz owned it) and that you were not authorized to drive? The state’s standing argument didn’t fly, in light of the recent US Supreme Court case of Byrd v. United States, where our highest court held that “an unauthorized driver of a rental car has standing to challenge the search of that rental car”. 138 S. Ct. 1518 (2018)]