Background
Thomas Edward Petro was convicted of one count of coercion or enticement of a minor under Section eighteen two four two two B. The conviction stemmed from online communications with a minor who posed as an adult on the Whisper application. During the government’s closing argument, the prosecutor stated that the jury’s job was to remove the defendant’s cloak of presumption of innocence and declared that the cloak had fallen to the defendant’s feet, leaving him naked in his guilt.
The court’s reasoning
The court applied the plain error standard because no objection was made at trial. While the government conceded that the remarks were error and clear or obvious, the court found that the error affected Petro’s substantial rights and seriously affected the fairness of the proceedings. The remarks were made at the end of the closing argument, which is the last thing jurors hear before deliberating, and the use of a nude photograph compounded the prejudice. The court relied on Mahorney v. Wallman and United States v. Starks to conclude that such statements infringe on the constitutional right to a presumption of innocence.
The presumption remains with the defendant throughout trial and is extinguished only upon the jury’s determination that the government has proven the defendant’s guilt beyond a reasonable doubt.
United States v. Starks, 34 F.4th 1142, 1159 (10th Cir. 2022)
What it means going forward
The judgment is vacated and the case is remanded for further proceedings, likely a new trial.