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Calling Defendant by 'Murder' Nickname Wins Him New TrialProsecutors' repeated "gratuitous" references, "with a lot of arch emphasis and many facetious asides" to the nickname of a defendant -- "Murder" -- entitled the defendant to a new trial for attempted murder, the 2nd Circuit has ruled. The court concluded prosecutors "invited prejudice by repeatedly emphasizing [Laval] Farmer's nickname in a manner designed to suggest that he was known by his associates as a murderer and that he acted in accordance with that propensity in carrying out the acts charged in the indictment."
New York Law Journal2009-10-13 12:00:00 AM
Prosecutors' repeated "gratuitous" references, "with a lot of arch emphasis and many facetious asides" to the nickname of a defendant -- "Murder" -- entitled the defendant to a new trial for attempted murder, a federal appeals court has ruled.
The 2nd U.S. Circuit Court of Appeals concluded in United States v. Farmer, 07-2729-cr, that Laval "Murder" Farmer had been denied due process because the prosecutors "invited prejudice by repeatedly emphasizing Farmer's nickname in a manner designed to suggest that he was known by his associates as a murderer and that he acted in accordance with that propensity in carrying out the acts charged in the indictment."
Eastern District of New York Judge Thomas Platt, who presided over Farmer's February 2006 trial in Central Islip, N.Y., "did nothing" to curb the abuses by the prosecutors or to mitigate the prejudice to Farmer, Chief Judge Dennis Jacobs ruled in an opinion joined by Judges John M. Walker Jr. and Pierre N. Leval.
The circuit reversed the conviction of Farmer for the 2002 attempted murder of fellow Bloods member Jacquel Patterson in Wilkes Barre, Pa., and associated weapons offenses.
But the court refused to overturn his conviction at the same trial for the 2001 murder of 14-year-old Jose Angel White in Roosevelt, Long Island, saying evidence of his guilt for that crime was so overwhelming that he would have been convicted whether or not he had a nickname. By contrast, evidence of the attempted murder count was much weaker, the circuit observed.
Farmer was accused of being a member of the Velt Gangsta Lanes in Long Island, a subgroup of the Bloods street gang whose fellow gang members called him by his nickname. But the circuit said he had acquired the nickname many years before, and it had "little, if any, relevance" to the contested issues at trial.
At trial, Farmer objected to the use of his nickname in open court and said he would concede his identification to avoid having the nickname heard by the jury.
The government rejected the offer and Judge Platt sided with the prosecution.
"Thereafter," Judge Jacobs wrote, "the prosecution used the nickname promptly, repeatedly, and in way calculated to intensify the prejudice."
The decision does not identify the prosecutors by name, but other court documents list them as Ilene Jaroslaw and Tracy Lee Dayton of the Eastern District U.S. Attorney's Office.
According to the circuit's decision, the "first prosecutor," in the fourth sentence of her opening, stated that "Laval Farmer, known to everyone by his gangster name as Murder, murdered ninth grader Jose White in cold blood."
Moments later, Jacobs wrote, she explained that "[i]n gang life, if members of another gang mess up members of your gang, the rule is that you retaliate. So, Murder decided that it was time to take out a Crip. ... Murder was on the warpath."
Referring to Farmer's alleged shooting of Patterson, the prosecutor argued that "as you might imagine from what happened eight or nine months before, it wasn't Murder's way to let things go."
According to the decision, in her summation, the "second prosecutor" asked the jury, "Now, when opening statements began in this case three weeks ago, you must have been saying to yourself: Who would do such a thing? Who would execute a 14-year-old boy simply because he was wearing blue? Well, allow me to reintroduce you to the defendant. That would be Mr. Murder. He would do something like this."
And in the climax of her closing statement, the prosecutor observed that Farmer "really tries to prove himself a real gangster, to come up in the gang. You know, maybe live up to his name of Murder."
While the circuit faulted Platt for allowing the use of a nickname "that bespeaks guilt, violence or depravity," Jacobs said a trial judge in such a situation "should consider seriously whether the probative value is substantially outweighed by any danger of unfair prejudice, Fed. R. Evid. 403, and whether introduction of the nickname is truly needed to identify the defendant, connect him with the crime, or prove some other matter of significance."
Jacobs said the parties should also observe Federal Rule of Evidence 404(a), which bars admissibility of character evidence or character traits "for the purpose of proving action in conformity therewith on a particular occasion."
He added that it was the "ethical obligation of the prosecutor, and the legal obligation of the court, to ensure that this rule is observed."
Here, identity was not an issue and use of the nickname served no useful purpose, the circuit concluded. However, Farmer was substantially harmed, it held.
The government argued that Farmer could not have suffered prejudice from the use of his nickname because the crimes were so highly charged and gruesome that it could not have had any "incremental effect."
"This argument is unsound: that the trial evidence was (unavoidably) inflammatory was no reason for the government to raise the temperature in the courtroom by irrelevant sensation," Jacobs wrote.
Robert Nardoza, a spokesman for U.S. Attorney Benton J. Campbell, said in an e-mail that the decision was under review and the office was "evaluating our options."
Jeremy Epstein, Seth M. Kean, Grace Lee and Rebecca Boon of Shearman & Sterling represented Farmer on the appeal.
Jaroslaw and Peter A. Norling represented the government.
Farmer is serving a life sentence for murder.