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Reversible Error if DA Tells Story of Scorpion & Frog?

The fable about the scorpion and the frog explains that a frog offers a scorpion a ride on his back across a river because the frog knows the scorpion cannot swim.  In response to the offer, the scorpion says, “Yes, that is very nice of you.  But aren’t you afraid that I might sting you and kill you?”  The frog responds, “No, I trust you will not sting me.  You seem nice and you certainly will not do that if I take you across the river.” 

The frog then proceeds to swim across the river with the scorpion on his back.  Once the pair reach the other side, the scorpion thanks the frog for the ride and proceeds to sting the frog.  As the frog lay dying, he asked the scorpion, “Why did you do that?  I helped you across the river!”  The scorpion answers, “Sorry, it is just my nature.”

In the murder case of People v. Gregory Jermaine Thompson, in Santa Clara County Superior Court, the prosecutor told the jury part of the story of the scorpion and the frog to explain to prospective jurors during voir dire that he did not need to explain motive for the jury to convict Mr. Thompson of murder.

As the prosecutor told the story, defense counsel objected and the prosecutor stopped telling the story.  Defense counsel then moved for a mistrial.  The judge denied the motion and the jury convicted Thompson of first degree murder (Penal Code § 187(a)), possession of a firearm by a felon (Penal Code § 29800(a)(1)), as well as finding true the allegation that he personally and intentionally discharged a firearm in the commission of murder (Penal Code § 12022.53(d)).

Mr. Thompson then appealed his conviction and sentence to the Sixth Appellate District on many grounds, but the scope of this article will only concern his argument that the prosecutor committed misconduct and violated his Sixth and Fourteenth rights when he told prospective jurors the fable of the scorpion and the frog while he explained that he was not required to prove motive.  He explained that he only needed to prove Mr. Thompson committed the crime beyond a reasonable doubt.

Mr. Thompson argued that the use of the fable was improper because it was a character argument and was racially discriminatory because he is African American. 

The Sixth Appellate District agreed with Thompson, as an initial matter, that a prosecutor may not compare a defendant to a beast for the purpose of dehumanizing him before the jury or in an effort to evoke the jury’s racial biases. 

However, the appellate court then explained that “a prosecutor’s conduct violates the federal Constitution when it infects the trial with unfairness, and violates state law if it involves the use of deceptive or reprehensible methods of persuasion.  To preserve a misconduct claim for appellate review, a defendant must first make a timely objection and ask the trial court to admonish the jury to disregard the remark or conduct unless such an admonition would not have cured the harm.” People v. Booker (2011) 51 Cal. 4th 141, 184-185.

“When the claim focusses on the prosecutor’s comments to the jury, we determine whether there was a reasonable likelihood that the jury construed or apply any of the remarks in an objectionable fashion.”  Booker, supra, 184-185.

The Sixth Appellate District then noted that the defense attorney did not request an admonition from the judge to the jury to disregard the remark, so the prosecutorial misconduct claim was waived.  See Booker, supra, and People v. Medina (1995) 11 Cal. 4th 694, 740 (forfeiture rule applies to claimed misconduct during jury voir dire).  Moreover, the Sixth Appellate District commented that had such an admonition been requested, it would have cured by an admonition from the judge.

Nonetheless, the appellate court found that even if defendant’s prosecutorial misconduct claim had been preserved, it would find no reversible error because the prosecutor’s comments did not comprise “a pattern of egregious misbehavior making the trial fundamentally unfair.”  People v. Winbush (2017) 2 Cal. 5th 402, 484.

In addition, defendant did not establish that all jurors were familiar with the fable, so it would be mere speculation whether there was a reasonable probability that the jury construed or applied any of the prosecutor’s remarks in an objectionable fashion.

In summary, since the prosecutor did not tell the full fable of the scorpion and the frog, the appellate court found the suggestion was incomplete.  This was critical to the appellate court, we think and sad, as well, because this opinion, instead of discouraging the use of such an analogy to defendant, encourages prosecutors to use it.

For more information about prosecutorial misconduct, please click on the following articles:
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