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Court House News Service reports that a Utah Court of Appeals has overturned the sexual assault convictions of two Salt Lake City men after the prosecutor encouraged the jury to protect the victim and women in general from an implied, future attack by the two men.  David Akok was convicted of rape, while his co-defendant John Jok was convicted on two counts of forcible sexual assault.  In the rebuttal portion of his closing argument, the prosecutor told the jury:

When you look at the totality of the evidence it is very clear that [the defendants] engaged in sexual intercourse and touched her without her consent. They took advantage of a very vulnerable victim. Don’t let them take advantage of it again. Thank you.

Following closing arguments, Akok’s counsel moved for a mistrial, and Jok’s attorney joined the motion, on the ground that the prosecutor’s final appeal was prejudicial.  The judge denied the motion but agreed to give the jury a partial admonishment regarding the prosecutor’s statement.

The Utah Court of Appeals issued separate rulings for each defendant, reaching the same conclusion in both.  In its opinion overturning Akok’s conviction the court wrote:

In considering the prosecutor’s statement, we first analyze whether it called to the attention of the jury a matter it would not be justified in considering in determining it’s verdict…

Here the [prosecutor’s] statement…appealed to the jurors’ emotions.  The statement suggested to the jurors that they had a duty to protect N.C., or perhaps women generally, from defendant and the codefendant.  And it suggested that an acquittal would allow defendant and the codefendant to take advantage of N.C. or other women again. In other words, the statement called on the jury to assume the responsibility of ensuring [N.C.’s] safety.

As we determined in Wright, such statements divert the jury’s attention from its duty to impartially apply the law to the facts.

In its parallel opinion overturning Jok’s conviction, the court used the same logic, and concluded, as it did in Akok’s case, that the error was “substantial and prejudicial” and that there was a “reasonable likelihood that in its absence there would have been a more favorable result for the defendant.”
While this is hardly the most egregious of the cases of improper argument that we’ve covered, it’s encouraging to see an appeals court hold a prosecutor responsible for his attempt, intentional or otherwise, to draw the jury’s attention away in the final moments of the trial from the facts presented to a fear of a hypothetical future crime.
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