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Concluding that its earlier admonitions were not strong enough, the Pennsylvania Supreme Court has adopted a blanket prohibition against prosecutors urging jurors to “send a message” with the verdicts they issue. “Although until now we have not explicitly adopted a per se [proscription] similar to that set forth in Chambers, it is fair to say that we have been in the ‘narrow toleration’ and close scrutiny stage for some time,” Justice Ronald D. Castille wrote for the four-justice majority in Commonwealth v. DeJesus, No. 286 CAP. “This court has repeatedly reminded the bench and bar that ‘send a message’ exhortations in criminal trials are particularly prejudicial and should be avoided,” Castille wrote. The court recently granted a new sentencing hearing for a North Philadelphia drug gang hit man who is on death row for four murders, and the justices warned prosecutors that such rhetorical flourishes would no longer be tolerated. “Our adversary system permits the prosecutor to prosecute with earnestness and vigor. “Nevertheless, the arguments advanced must be confined to the evidence and the legitimate inferences to be drawn therefrom,” Castille wrote. “Deliberate attempts to destroy the objectivity and impartiality of the finder of fact so as to cause the verdict to be a product of the emotion rather than reflective judgment will not be tolerated,” he said. Justice J. Michael Eakin, joined by Justice Sandra Schultz Newman, filed a concurring opinion. Former Chief Justice Stephen A. Zappala did not participate in the decision, and Justice Max Baer was not on the bench when the case was argued. The murder case The ruling came in the case of Jose “Little Bert” DeJesus, 25, convicted of shooting 38-year-old David Sims 11 times in Philadelphia seven years ago. The Supreme Court upheld the guilty verdict but found that there was prosecutorial misconduct during DeJesus’ sentencing. The Philadelphia assistant district attorney prosecuting the case told the jury, “When you think of the death penalty, there are messages to be sent. There is a message on the street saying, ‘Look at that, he got death; you see that, honey, that’s why you live by the rules, so you don’t end up like that.’” Castille said the commonwealth was correct in noting that the Supreme Court has, in some contexts, ruled that “send a message” arguments may be tolerable. “In any event,” Castille wrote, “this court has strongly admonished prosecutors to refrain from exhorting jurors to use their verdict to ‘send a message’ to the community or the judicial system.” Notwithstanding such admonishment, Castille said, “In this instance, the directive was observed only by an extended breach, as the prosecutor inexplicably and directly exhorted the jury to impose the death penalty in order to send a message to people on the street and to people in prisons. The plea to such an external irrelevancy was so direct that it culminated in the prosecutor inviting the jury to sentence this appellant to death so as to ‘scare straight’ others who might be considering murder.” Crossing the line In his concurring opinion, Eakin said the prosecutor in DeJesus “crossed the line,” but argued that a “bright-line” rule against message sending is “unwise and unnecessary.” The Sims murder is one of four killings for which the death sentence was imposed on DeJesus. He was also convicted of killing a pregnant teenage bystander-whose child survived after a Caesarean section-and two other men. DeJesus also was sentenced to 26 years to life for a March 1998 prison escape in which a guard was stabbed DeJesus’ defense attorney, Samuel C. Stretton, said he was pleased with the ruling. “It was clear to me that the sentencing hearing was tainted by the comments made,” he said. “This send-a-message really taints a jury and diverts them from what they should be looking at,” Stretton added. The Associated Press contributed to this report.

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