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Prosecutorial misconduct in closing arguments: how far is too far?

Prosecutorial misconduct in closing arguments: how far is too far?
Axelrod & Associates, P.A.

How far is too far when a prosecutor makes inflammatory statements in their closing arguments to jurors? Is it prosecutorial misconduct?

Is it ever okay for a prosecutor to purposely inflame the passions and prejudices of jurors? Do the ends justify the means when the prosecutor believes he or she is taking a dangerous person off the street?

Is it acceptable for a prosecutor’s guiding principle to be winning their case? Is that what the public wants to see? Is that what the ethics rules require, or is it prosecutorial misconduct?


The ABA standards for criminal justice provide that “the duty of a prosecutor is to seek justice, not merely convict.”

The US Supreme Court, in Berger v. US, says that:

A prosecutor may prosecute with earnestness and vigor, indeed he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones…. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Similarly, Justice William Douglas stated:

The function of the prosecutor under the federal Constitution is not to tack as many skins of victims as possible against the wall. His function is to vindicate the rights of the people as expressed in the laws and give those accused of crime a fair trial.

A prosecutor’s duty is not to seek convictions, but rather to:

  • Seek justice,
  • Strike hard blows, but not foul ones, and
  • Ensure fair trials.

When a prosecutor makes inflammatory statements in closing argument, is that prosecutorial misconduct?

Of course it is – although the Office of Disciplinary Counsel is loathe to cross any of our state’s prosecutors. A more practical guide for when this conduct crosses the line is what the appellate courts have to say about it and when they have reversed convictions based on prosecutorial misconduct in closing arguments.

The rule, announced by the US Supreme Court in Donnelly v. DeChristoforo, is that there is no appellate relief based on improper closing arguments by a prosecutor “unless the argument so infected the trial with unfairness as to make the resulting conviction a denial of due process.”

Let’s look at a few examples of prosecutors who crossed the line and what the appellate courts had to say about it.

“Here’s Johnny!”

The New Jersey Supreme Court recently overturned a bank robbery conviction where the prosecutor showed jurors a photo from The Shining depicting the scene where Jack Nicholson yells, “Here’s Johnny!” after smashing through a door with an axe to murder his wife and son:

During closing arguments in the case against Damon Williams, the prosecutor showed jurors a photo from the movie “The Shining” depicting a character played by Jack Nicholson telling his terrified wife and son, “Here’s Johnny!” moments after breaking through a door with an axe.

There is no valid purpose to attempt to connect a defendant to a deranged, murderous, fictional character from Stephen King’s imagination other than to inflame the jurors, and to convict the defendant on a basis that has nothing to do with his actual case.

State v. Randall: Is it Okay to Compare the Defendant to a Cockroach?

How about in SC? That would never happen here, right?

In State v. Randall, the prosecutor compared the defendant – along with all drug dealers – to cockroaches:

That’s why when I think of dope dealers ladies and gentlemen, the only way I can think of them is like cockroaches. And if that sounds foul to you, it should. Cause drug dealers are filthy just like cockroaches. Everywhere they go, everything they touch, they contaminate. And one thing about cockroaches and certainly is true is they hate the light. Particularly the blue kind like the ones that stopped these two fellows cause they were scurrying back to their nest egg. 40 to 80 thousand dollars total. But the thing that makes them worse than cockroaches is the fact they’re human beings.

Although the Circuit Court granted PCR because Randall’s attorney failed to object to the cockroach analogy, the Supreme Court disagreed.

Despite the long history of calling people cockroaches to demonize them, dehumanize them, and, on occasion, commit genocide, the SC Supreme Court reversed the Circuit Court’s grant of PCR because the comments were not improper and did not “so infect the trial with unfairness as to deprive Randall of a fair trial.”

So, in SC, it’s fair game for prosecutors to call defendants cockroaches in an attempt to dehumanize them and persuade jurors to convict.

State v. Northcutt: “Open Season on Babies”

What does cross the line for the SC Supreme Court, if they are okay with dehumanizing cockroach references?

In State v. Northcutt, they reversed a death sentence where former Lexington County Solicitor Donnie Meyers:

  • Cried numerous times during closing argument,
  • Told the jurors they would “kick the baby some more” if they didn’t vote for the death penalty,
  • Dehumanized the defendant by saying “I don’t even call him a person,”
  • Threatened jurors by saying it would be on their heads if the defendant killed someone else (while he was serving a life sentence),
  • Stated that it would be “open season on babies” if they did not vote for the death penalty,
  • Told jurors that he “expects the death penalty” (expressing a personal opinion), and
  • Re-enacted a funeral procession, wheeling a baby’s crib through the courtroom with a black shroud over it.

State v. Bennett: Is it Okay to Call a Black Defendant “King Kong” and a “Caveman?”

Because any discussion of prosecutorial misconduct is dominated by former Lexington County Solicitor Donnie Meyers, who may or may not hold the record for the most death penalty convictions overturned on appeal, we have to talk about State v. Bennett.

Bennett is a black man who is 6’6’’ tall and 300 pounds, who was on trial with an all-white jury. During the trial, Meyers:

  • Referred to him as “King Kong,”
  • Called him a “caveman,”
  • Pointed out to the jurors that Bennett had a sexual relationship with a white woman, and
  • Called a witness to the stand who testified that Bennett had attacked her and, while she was in a coma, she had a dream that black Indians were chasing her and trying to kill her (“Indians were chasing me trying to kill me, and the thing I thought was they were black.”)

This was Bennett’s second trial – the first had already been reversed by the SC Supreme Court. In the first trial, there were some black jurors, and there Meyers did not use the racially charged language that he used throughout the second trial, where the jurors were all white.

Despite this, the SC Supreme Court, in an opinion authored by former Chief Justice Toal, upheld Bennett’s conviction, finding that Meyer’s antics “did not improperly inject racial issues into the trial.”

When one of Bennett’s PCR lawyers later asked a juror why she had voted to convict, the juror replied:

“Because he was just a dumb nigger,” the juror candidly responded. “I apologize for saying that word,” the juror then said under oath, “but after going through that thing for an entire week and all the evidence piling up against him, that was just the way I felt about it.”

Bennett’s conviction was later overturned in federal court “because of the way Myers’s arguments in the sentencing phase of the trial had relied on racist appeals to an all-white jury.”

Meyers, aka “Doctor Death” or “Death Penalty Donnie,” finally retired at the end of 2016 – after his third alcohol-related charge and his first DUI conviction.


If you have been charged with a crime in SC, call now at 843-916-9300 or email us online to speak with a Myrtle Beach criminal defense lawyer on the Axelrod team today.

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