Prosecutor's conjectural slurs lead to overturned murder conviction
A federal appeals court has overturned a California murder conviction because the defense lawyer failed to object when a prosecutor speculated about racial slurs the defendant could have uttered before the slaying.
The San Francisco-based 9th U.S. Circuit Court of Appeals on Tuesday overturned the 2004 conviction of Paul Zapata in the 2001 parking-lot slaying of a student he allegedly mistook for a rival gang member, report the San Jose Mercury News, the Recorder, Courthouse News Service and the San Francisco Chronicle. The opinion is here (PDF).
Deputy District Attorney Stuart Scott, who is now a judge, asked jurors to imagine the last words the victim heard before he was shot and killed.
“Picture, if you will, the last words that Juan Trigueros heard before the defendant shot him in the back and to make sure he was dead shot him in the chest,” Scott said in his closing rebuttal argument. “What were the last things he heard? What’s the reasonable inference of what was going on that precise moment the second before he’s mortally wounded? F—–’ scrap. You f—–’ wetback. Can you imagine the terror and the fear Juan Trigueros must have felt. … F—–’ scrap. Wetback.”
Scott repeated the slurs several times in his closing rebuttal. Scott had told jurors in opening statements that the word “scrap” was like the N-word for Mexican nationals. The defense lawyer didn’t object and didn’t seek a curative instruction.
The appeals court said it couldn’t reach a claim of prosecutorial misconduct because it was procedurally defaulted. But the defense lawyer’s failure to insulate jurors from the “grossly improper comments” constituted ineffective assistance of counsel, the appeals court said.
Scott is now a judge in Santa Clara County.
