A New Jersey prosecutor’s expansive opening statement in an armed-robbery case—suggesting that he was the jury’s personal advocate and that the defendant was a known threat in his community—prompted reversal of a conviction on Wednesday.
The comments “implied the prosecutor and jury were members of the same group, to the exclusion of defendant” and portrayed the defendant as an “outcast,” an appeals court said in State v. Raiford.
Assistant Middlesex County Prosecutor Douglas Herring opened the trial by saying, “I represent you, the people of the state of New Jersey.”
He also said “the defendant is a very well-known person in the Potters housing project in Edison,” where the crime occurred, and “everybody knows you can’t mess with Thomas Raiford.”
He added, “Welcome to the part of New Jersey you didn’t know about.”
The state charged that Raiford came up to Hannah Cohen, who was sitting in her car, and held a gun to her head, demanding to know the whereabouts of Cohen’s brother, whom Raiford accused of stealing money. He allegedly reached through the window, removed the keys and grabbed Cohen’s purse, saying she could have it when she delivered her brother or the money.
When Assistant Deputy Public Defender George Nassif objected to the opening statement, Superior Court Judge Bradley Ferencz cautioned jurors that Herring “represents the Prosecutor’s Office. In that respect it’s all he represents. … That’s exactly how you should perceive his argument.”
He added: “Statements by counsel are not evidentiary. Do not consider them so in any way, shape or form.”
But Ferencz did not tell the jury to disregard the comments and they were not stricken from the record.
Raiford was convicted of first-degree armed robbery, second-degree possession of a weapon for an unlawful purpose, third-degree unlawful possession of a weapon, fourth-degree aggravated assault, and lesser offenses.
On appeal, Judges Clarkson Fisher Jr. and Amy O’Connor found that Herring, by saying he represented “you, the people of the state,” improperly aligned himself with the jury and implied he was its advocate.
The statements that Raiford was well-known in the project and that people know they can’t tangle with him implied he had engaged in criminal activity in the past and was infamous for being vindictive, the judges said.
The vindictive reference was an “especially detrimental” suggestion because Raiford allegedly robbed and assaulted the victim in retaliation for a theft by her brother, they added.
“The comment improperly planted in the minds of the jury that defendant had a predilection for retribution, which could have improperly induced the jury to conclude defendant committed the crimes” at issue. And the statements had the potential to “strongly influence” the jury because they were delivered when it was getting its first impression of the case, the panel concluded.
Assistant Deputy Public Defender Stephen Hunter, Raiford’s appellate attorney, said Herring’s references “put the impression in the jury’s mind that here is a bad guy, that he’s dangerous.”
The state was represented on appeal by Brian Gillet, an assistant Middlesex County prosecutor, who did not return a call. •