Defense lawyers routinely cry prosecutorial misconduct, and appeals judges just as routinely swat those claims down like flies.
So when the 2nd Circuit last week tossed an attempted murder conviction because the government lawyer in the case was a bit too free and easy with her use of a New York gang member’s nickname, you tend to sit up and take notice.
Laval Farmer is simply a peach of a guy.
According to federal prosecutors, Farmer was a member of the Velt Gangsta Lanes of Roosevelt, New York, on Long Island, a subgroup of the larger Bloods street gang.
On the evening of Sept. 22, 2001, Farmer and several fellow gang members cruised the streets, looking to retaliate against the rival Crips for a beating administered to a fellow Blood.
Farmer and his friends came upon two boys riding bicycles, one of whom had the misfortune of being dressed in blue, the trademark color of the Crips.
Farmer allegedly gunned down the boy in blue, 14-year-old Jose White, mistakenly believing that he was evening the score with the Crips.
After the murder, Farmer moved to Wilkes-Barre, Pennsylvania, where he allegedly shot and wounded fellow Blood Jacquel Patterson in a clash of egos that evidently got out of hand.
The government charged Farmer with the murder of White and the attempted murder of Patterson. Because the attacks were allegedly in furtherance of Farmer’s position in the Bloods, the indictment included a federal racketeering charge.
The indictment also included references to Farmer’s nickname — “Murder.”
Naturally, Farmer’s lawyers wanted all references to the nickname kept out of the trial, but the judge allowed witnesses who knew him as Murder to use the moniker.
Not satisfied, federal prosecutors also repeatedly used the nickname in presenting evidence and dozens of times in argument to the jury.
In her summation, one 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.”
To top things off, in her concluding remarks the prosecutor commented that Farmer “really tried to prove himself a real gangster, to come up in the gang. You know, maybe live up to his name of Murder.”
Of course, Farmer protested the prosecution’s not-so-subtle use of his nickname when he appealed to the 2nd Circuit following his convictions.
The court found that, because the evidence was so strong, it really didn’t matter as far as Farmer’s conviction for the murder of Jose White.
But with the conviction on the more serious charge safely in hand, the court appeared to take the opportunity to place a shot squarely across the bow of prosecutors working in the 2nd Circuit, warning them to tone it down a bit.
Yes, the court ordered a retrial on the attempted murder charge because Farmer “was denied due process by the prosecutors’ gratuitous exploitation of his prejudicial nickname, ‘Murder.’”
Now, some might say that there was some universal justice at work in the fact that Farmer became the victim of a nickname that for years he carried with pride when among his buddies.
But the court didn’t see it that way.
“When a defendant charged with a crime of violence is identified before a jury by a nickname that bespeaks guilt, violence, or depravity, the potential for prejudice is obvious. Before receiving such evidence over a defendant’s objection, a trial court should consider seriously whether the probative value is substantially outweighed by any danger of unfair prejudice, 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. Even so, a potentially prejudicial nickname should not be used in a manner beyond the scope of its proper admission that invites unfair prejudice,” the court said. (U.S. v. Farmer)
— Pat Murphy
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