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Finding that a federal prosecutor went too far in his closing argument when he referred to an arson defendant as a “terrorist” in a speech delivered just one day before the first anniversary of the 9/11 terrorist attacks, the 3rd U.S. Circuit Court of Appeals has ordered a new trial. In United States v. Moore, a unanimous three-judge panel found that Darrick Moore’s trial on arson and gun charges was riddled with unfairly prejudicial evidence of numerous other crimes that were never charged in the indictment, including assaults, child abuse and testimony about his forcing children to deal drugs. Assistant U.S. Attorney James T. Clancy’s closing speech, delivered on Sept. 10, 2002, made an unfair trial even worse, the appellate panel found, by labeling Moore a “terrorist.” “The government’s hyperbolic closing argument crowned its trial strategy of pillorying defendant Darrick Moore before the jury,” U.S. Circuit Judge Maryanne Trump Barry wrote. “Inadmissible evidence and highly inflammatory statements came rolling in unimpeded at Moore’s trial, without any hesitation by the prosecutor, complaint by defense counsel, or correction by the district court,” Barry wrote in an opinion joined by Judges Marjorie O. Rendell and Max Rosenn. Barry found that since Moore’s trial lawyer, David Kluz, had failed to lodge any objections under Federal Rule of Evidence 404(b), the appellate court’s task was to review the trial for “plain error.” But even under such a strict test, Barry found that Moore’s new lawyer, James West, who was appointed to handle the appeal, was easily able to meet it. The trial lawyer’s failure to object, Barry said, “did not relieve the prosecutor of his duty to comply with the Federal Rules of Evidence and, even more importantly, rules of fundamental fairness. There was a serious breakdown here.” In a concurring opinion, Rendell said she agreed that “plain error occurred here by virtue of the admission of evidence that villainized Moore based on prior bad conduct that was totally unrelated to the offenses charged.” But Rendell said she wrote separately to emphasize that lawyers — both prosecutors and defense lawyers — bear the initial burden of ensuring that a trial is fair. “It is understandable that judges are inclined to leave evidentiary issues to the attorneys to challenge or not, as they see fit, because ours is essentially an adversary system, and judicial interference can have tactical implications,” Rendell wrote. Moore’s case was unusual, Rendell said, due to the “sheer heft of the truly damaging and irrelevant conduct … [which] quite probably diverted the jury’s attention from the relevant issues of proof.” As a result, Rendell said she agreed that U.S. District Judge Yvette Kane of the Middle District of Pennsylvania had committed “plain error” by failing to intervene and prevent the unfairness from continuing. Nonetheless, Rendell suggested that the lawyers deserved most of the blame. “While a trial judge should not let this happen, it is far easier for us to say so from our vantage point, with the 20/20 hindsight that we enjoy on appeal, than it is for the judge to determine mid-trial at what point enough is enough,” Rendell wrote. “It would be a far better thing for counsel — prosecution and defense alike — not to put judges into this predicament in the first instance, by adhering and policing adherence to the Rules of Evidence. Here, counsel utterly and inexplicably failed to do so,” Rendell wrote. Barry opened her majority opinion by quoting a portion of Clancy’s Sept. 10, 2002, closing argument: “Standing here knowing what date today is I am very, very reluctant to use the term I’m going to use, but, frankly, I think this defendant warrants that term, and that term is terrorist. “There are many different kinds of terrorists. We all know too well the kinds of terrorists that caused the attacks of the anniversary so-to-speak we will mark tomorrow. But there are very different kinds of terrorists, and I think this defendant is one of them,” Clancy said. Clancy went on to say that Moore had “inflicted terror” on his ex-girlfriend, Belinda Newcomer, and her children. “You heard testimony that he was forcing kids to do drug transactions for him. What kind of person does that?” Clancy asked the jury. Now the 3rd Circuit has ruled that Clancy’s closing speech was not only unfairly prejudicial, but that it capped a trial studded from beginning to end with unfairly prejudicial evidence relating to alleged prior bad acts by Moore. Moore was on trial facing just two charges — arson and possession of a gun by a convicted felon. Barry noted that Newcomer, the prosecution’s key witness, testified that on Christmas Eve, 2001, Moore had awoken her and asked her to drive him to a location he did not disclose. She said they first drove to a gas station where Moore filled a red plastic gas can with fuel, and then drove to an apartment building in York, Pa., where he instructed her to wait for him. She testified that Moore disappeared behind the building, and that, minutes later, he came running back, smelling of gasoline, and instructed her to drive away. As they drove off, she testified, Moore remarked that he had finally gotten even with “someone he had been angry at.” But Barry said that Newcomer had also testified about “the many ways in which Moore was physically violent, seriously injuring both her and her son.” Newcomer’s 13-year-old daughter, Brittany, also took the stand and testified that Moore punched, kicked and choked her after she refused to sell drugs for him. “Moore was not charged with forcing children or anyone else to deal drugs. Neither was he charged with assault. Nor drug possession. Nor child abuse. Nor terrorism,” Barry said. Instead, she said, Moore was on trial only for arson and for possession of a firearm by a previously convicted felon. “Any observer with even an elemental understanding of the Federal Rules of Evidence should have wondered how the wide-ranging testimony about drugs, domestic violence, and child abuse was appropriate in an arson and gun possession trial,” Barry wrote. “Moreover, what justification could the prosecutor have had for raising the specter of Sept. 11 and calling Moore a terrorist? We cannot conceive of any,” Barry wrote. Barry noted that “defense counsel never said a word when his client was likened to one of the Sept. 11 terrorists, nor did the district court.” As a result, Barry found that all of Moore’s claims on appeal should be reviewed not for abuse of discretion, but under the stricter “plain error” test. Under the Federal Rules of Evidence, Barry said, an alleged “prior bad act” is admissible only if the prosecutor can meet a three-part test, showing that the evidence has “a proper purpose;” is “relevant;” and that its probative value outweighs its potential for unfair prejudicial effect. And when such evidence comes in, Barry noted, the trial judge must instruct the jury to consider the evidence “only for the limited purpose for which it is admitted.” In Moore’s case, Barry said, the evidence elicited from his ex-girlfriend “fails each and every one of these requirements.” Instead, Barry said, “what is crystal clear is that the evidence came in for one reason and one reason only: to demonstrate Moore’s propensity to act in a particular manner, i.e., to be a very violent man, whose violence made the arson and the gun possession more likely. Admitting evidence of other bad acts for this purpose is, of course, prohibited.” And the prosecutor’s closing speech only served to exacerbate the unfairness, Barry found. “The compounding effect of the prosecutor’s inflammatory closing argument forecloses any argument that reversal is not warranted,” Barry wrote. “On the eve of the one-year anniversary of the Sept. 11 terrorist attacks, the prosecutor called Moore a terrorist… . The prosecutor marshaled the most damning of the 404(b) evidence and emphasized it to the jury. Why should the jury convict? Because, he explained, of what Moore did to the Newcomers. He is, in a nutshell, a bad man who should be stopped at all costs,” Barry wrote. Barry found that the only cure was to grant a new trial. “We cannot know, given the evidence that came in, whether Moore was convicted because the jury believed him to be an arsonist and the illegal possessor of a gun, or because it thought him to be a violent and dangerous man, a ‘terrorist’ of sorts,” Barry wrote.

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