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VOL. 129 | NO. 166 | Tuesday, August 26, 2014

Jackson Ruling Draws Line on Comments to Juries

By Bill Dries

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Prosecutors and defense attorneys sometimes get right up to the line that separates proper from improper when it comes to their closing statements to a jury during a trial.

The closing statements offer both sides some room in terms of their descriptions or overviews of the case with judges commonly reiterating that what attorneys on either side say there and in opening statements are to be considered evidence.

And last week’s Tennessee Supreme Court ruling ordering a new trial for Noura Jackson in the 2005 murder of her mother, Jennifer Jackson, makes the line brighter.

The court ruled that Jackson is entitled to a new trial, in part, because then assistant district attorney Amy Weirich, who is now Shelby County district attorney general, stood next to Noura Jackson at the end of the 2009 trial and in a loud voice said, “Just tell us where you were. That’s all we are asking, Noura.”


(Daily News File/Bob Bayne)

The court concluded the comment “encouraged the jury to view defendant’s silence as a tacit admission of guilt” and in the process was a comment on something every judge in a case where a defendant chooses not to testify says repeatedly to juries: they cannot hold that against a defendant or imply from it that the defendant must be guilty.

The court also ordered a new trial because the prosecution did not turn over to the defense, until after the trial, a third statement made by a key witness in the trial.

Weirich said over the weekend she cannot comment specifically on the case because it is pending. She added that she disagrees with how the court saw the matters on appeal, but respects the decision and will prepare for a new trial.

The 52-page ruling and unanimous opinion in the Jackson case includes a footnote that refers to three appeals court rulings involving comments made by Shelby County prosecutors during closing statements.

“The prosecutor in Shelby County is doubtless well aware of these principles,” the footnote begins, referring to a part of the ruling in which the court emphasized that while closing arguments shouldn’t be “unduly restricted,” any remarks about a defendant using their right not to testify should be “off limits to any conscientious prosecutor.”

Weirich was a prosecutor in two of the cases – both involving the murder of an armored car guard in a 1997 robbery.

Anthony Bond and Andrew L. Thomas were accused in the 1997 robbery and fatal shooting of James Day Jr., a courier for Loomis Fargo and Co. Day died more than two years later from his wounds in the robbery and those two years were one of several factors in the appeal.

The Court of Criminal Appeals affirmed the trial court’s decision in the separate appeals by Bond and Thomas.

Bond’s appeal, in part, was over a prosecutor’s rebuttal argument at closing in which she apologized to the jury for their sequestration and that the time and trouble of the trial wouldn’t have been necessary except for the defendant. The defense objected at the bench saying the state called for sequestration. The trial court judge found it was part of a larger statement that nothing in trial would be taking place except for him. There was no curative instruction.

“The remark was improper,” the appeals court found in its ruling and in noting that it was in the context of the entire proceeding, added: “Either way, the comment should not have been made.”

But the court added: “Nevertheless, the state presented a particularly compelling case against the defendant,” noting that Bond had pleaded guilty to the underlying charge of robbery before Day’s death. “The strength of the case could have hardly been greater. No other errors in the record compound this error. … It is our assessment that the argument did not affect the verdict.”

Thomas, the gunman in the robbery, appealed, in part, because the prosecutor referred to him and Bond repeatedly in closing statements as the personification of “greed and evil.”

The Tennessee Supreme Court ruled the description was “improper” but “harmless in the context of the entire argument.”

In the case of Torrez Talley, he and two co-defendants, Jevon Bryant and Keith Ezelll, were tried on 14 counts of especially aggravated kidnapping and five counts of aggravated robbery.

Talley was convicted of 10 counts of especially aggravated kidnapping and four counts of aggravated robbery. Bryant and Ezell were convicted on all counts with Bryant sentenced to 364 years, Ezell to 198 years and Talley to 140 years.

Talley’s appeal was based on statements by prosecutors in rebuttal closing statements that on the day of the crime “hatred, vengeance and evil came calling.”

The state criminal appeals court ruled the comments were “improper in that they were designed to inflame the passions and prejudices of the jury.”

But the court found the improper comments did not warrant reversal and the criminal appeals court cited the Tennessee Supreme Court’s decision in the Thomas appeal.

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