Prosecutor's Urgings To Jurors Went Too Far, 4th Circ. Finds

By Kevin Penton | September 12, 2021, 8:02 PM EDT

When Charles F. Plymail's attorney entered closing arguments at his client's 1993 trial for a second degree sexual assault charge, the lawyer warned the men in the jury that it was "dangerous to even look at a woman" because she could "shout 'rape' under any condition."

Yet rather than enter an objection, the prosecutor in the case opted to rebut by speaking of "trickster lovers" and by urging the jury to think of their children and to deliver a verdict "for womankind, for all of us."

The prosecutor's language crossed the line and denied Plymail a fair trial, as it emotionally invited the jury to not just look at the facts of the case, but to enter a verdict against him that would send a broader message, the Fourth Circuit determined in an opinion it entered in August and tweaked in early September.

"While we do not expect emotionless prosecutors to present antiseptic arguments, they may not seek a conviction based on prejudice or passions," the opinion reads. "Prosecutors violate this edict when they stray beyond the defendant's crimes and ask the jury to convict in order to 'send a message to the community.'"

Plymail met a woman at a bar in September 1992, and they returned to his apartment and had consensual sex twice, according to their accounts.

But the woman testified that when she wanted to leave Plymail refused, he slapped her and ultimately forced her to perform oral sex before she managed to escape the apartment, according to court documents.

Plymail appealed his 1993 conviction, but the case languished in the court system for years. By the time the Fourth Circuit entered its verdict, Plymail was on parole for his conviction in the case, according to the opinion.

The three-judge appellate panel determined that the prosecutor went too far by asking the jury to think of their children going to college one day and potentially running into "trickster lovers" like Plymail. The prosecutor had told the jury that "this sweet tooth of his for masochistic, sadomasochistic horror cannot be allowed to escape."

Had the jury not entered a guilty verdict, they would have sent a message to men with the "sweet tooth of sadomasochism" to say, "I've got you now," the prosecutor told them.

While the Fourth Circuit agreed with prosecutors that Plymail's lawyer made improper arguments to the jury by warning the men of the danger they purportedly faced from made-up rape allegations by women, "two wrongs do not make a right," the panel wrote, as it determined that the Southern District of West Virginia erred by granting summary judgment against Plymail.

"Who wishes to send a message to the community that men may have their way with women, that rapists may go free, that women will not be protected?" the Fourth Circuit determined. "For the same reason it was powerful, it was highly improper. These appeals to the jury violated the fundamental fairness due to every criminal defendant."

West Virginia prosecutors could not be reached for comment on Friday.

John Korzen, an associate professor of legal writing at Wake Forest Law School who served as Plymail's attorney together with students Henna Shah and Mackenzie Herman, told Law360 on Friday that his client was pleased by the court's opinion.

"The opinion is one fine example of many over the years in which the Fourth Circuit has acted to protect the fairness of criminal prosecutions at the trial level whether due process violations by prosecutors as in this case and others or ineffective assistance of defense counsel in still others," Korzen said.

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--Editing by Katherine Rautenberg.

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