steady-hall

Timothy P. O'Neill

December 10, 2004

When asked about movies with a "message," Samuel Goldwyn derisively remarked, "If you want to send a message, use Western Union."

But what about verdicts in criminal trials? Can a prosecutor ask a jury to use its verdict as a way to "send a message" concerning crime in the community?

Consider this closing argument in a case where the defendant was accused of being involved with several others in the first-degree murder of a police officer:
"[T]hey think they run this society. Ladies and gentlemen, we are going to ask that you respond affirmatively that they do not.

"We as a society do not have to live in their twisted world. We do not have to accept their values. We don't have to allow that to happen in our community. We don't have to allow these guys blasting sawed-off shotguns at other human beings.

"We as a people can stand together and say, no, you're not going to do it here. And if you do, you have the -- you will be held responsible for your actions."

Consider what the defense is suggesting that you do. Consider the message that they want you to send: that by allowing him to escape responsibility for the actions that he has placed in motion, think about what message would be sent out to the streets. Hey, go ahead and get those sawed-off shotguns. Go ahead and plan those murders. Grab your best Tec 9s, your best .38 and get them all over to the drug spots, deal dope and go ahead and blast away.

And when you blast away, go ahead and flee. Flee to another location because if a police officer responds and gets killed, don't worry, just say, not me, had nothing to do with it.
Think about that message.People v Johnson, 803 N.E.2d 405, 419 (Ill. 2003).

So what, if anything, is wrong with a prosecutor telling a jury that they should consider the effect that their verdict will have, not just on the defendant, but on society at large? I think the most thorough analysis of this issue can be found in Professor James Joseph Duane's succinctly-titled article, "What Message Are We Sending to Criminal Jurors When We Ask Them to 'Send a Message' With Their Verdict?" 22 American Journal of Criminal Law 565 (1995).

Duane argues that the function of the jury in a criminal case is a narrow one: it is to decide the facts in the case before it in order to determine whether the state has proven the defendant guilty beyond a reasonable doubt. Period. Consequently, "the supposed communicative function of criminal convictions and acquittals is one of the single greatest threats to our most fundamental constitutional liberties, and to the integrity of the criminal justice system." At 569.

Asking a jury to see its verdict as a "message" of some kind to society flouts important constitutional values. For example, Duane contends that the argument that a jury should see a guilty verdict merely as a means for sending some type of message to society in general -- rather than a narrow end in and of itself -- violates the principle of presumption of innocence. The standard of proof of guilt "beyond a reasonable doubt" embodies a constitutional judgment that it is far worse to convict an innocent man than to let a guilty man go free. Telling a jury that they should consider what kind of "message" their verdict communicates subtly encourages a jury to convict on a lesser quantum of evidence.
Moreover, asking the jury to consider the societal effects of its verdict diverts the jury from its one and only duty: deciding the case based solely on the evidence presented at trial.
This is an issue on which the U.S. Supreme Court has taken a very firm stand. In 1994 the court confronted a case in which the defendant raised the defense of "not guilty by reason of insanity." In order to assuage the jury's possible fear that such a verdict would let him go free, the defendant asked the trial court for a jury instruction making it clear that such a verdict would indeed result in his involuntary commitment.

The Supreme Court affirmed the trial judge's refusal to give such an instruction, based upon "the well-established principle that a jury is to base its verdict on the evidence before it, without regard to the possible consequences of the verdict." Shannon v. U.S., 512 U.S. 573, 576 (1994).

As Duane notes, "[T]he reasoning of Shannon applies with far greater force to a prosecutorial appeal that a jury should convict an accused as a means of expressing community outrage or as a means of sending a message to the criminal underworld." At 609.

With this in mind, how did the Illinois Supreme Court view the prosecutor's argument in the Johnson case quoted above?

It first conceded that Illinois courts had not taken a consistent position on this issue. It cited two appellate court decisions holding that it was proper for the state to ask the jury to "send a message to the community" with its verdict. People v. Chavez, 637 N.E.2d 469, 476-77 (Ill.App.Ct. 1994); People v. Batson, 587 N.E.2d 549, 553-56 (Ill.App.Ct. 1992).
 

But the court went on to condemn prosecutors who use this tactic to divert the jury from its proper fact-finding role by convincing them that their verdict will "send a message" related to the prosecution's "extended and general denunciation of society's ills." Johnson, at 420. This, along with other errors occurring in the prosecution's closing argument, caused the Supreme Court to grant a new trial in order to "preserve and protect the integrity of the judicial process." At 423.

Recently, the Pennsylvania Supreme Court went a step beyond this.The court confronted a prosecutor's urging a jury to "send a message" that occurred not at the guilt/innocence stage, but rather at a post-verdict death penalty hearing. Commonwealth v. DeJesus, 2004 Pa. LEXIS 2481, Oct. 21, 2004. The court condemned this line of argument, stressing that the jury's only role at this stage of the trial was to weigh the aggravating and mitigating circumstances in order to decide whether this particular defendant should be given a death sentence.

The court complained that Pennsylvania prosecutors had ignored the court's previous admonitions on this subject, opining that this may have been because the court had sometimes affirmed death sentences despite this prosecutorial error.

This led the court to make a stunning announcement: starting with this case, it would find "send a message" arguments made at a death hearing to be prejudicial per se. Thus, such an argument would always result in a new sentencing hearing even where -- as here -- the trial judge told the jurors that they should ignore the prosecutor's admonition to "send a message" by imposing death.

If Illinois courts are really serious about stopping prosecutors from making "send a message" closing arguments, they should simply ask themselves one question: "What Would DeJesus Do?"