Motion Practice

Mass. High Court: Prosecutor’s Words May Be Used Against Him

In a case decided this past January, the Supreme Judicial Court (SJC) held that a prosecutor’s closing statements may be read to a jury if the prosecutor later changes his argument.

That case, Commonwealth v. Kevin Keo, involved the murder of Christian Martinez who was shot and killed outside of a restaurant in Lynn back in November 2007. Mr. Keo was charged with the killing, but no one actually saw who fired the bullet. The prosecutor had earlier argued at the trial of Keo’s codefendant that the codefendant, not Keo, was the triggerman. The jury apparently didn’t buy it and convicted the codefendant only of second degree murder under a theory that he was a joint venturer, not the shooter.

With that in mind, six months later the very same prosecutor switched tracks and argued at Keo’s trial that Keo was most definitely the shooter. “That’s what all the evidence shows,” he said, “[i]t couldn’t have been [the codefendant].”  Mr. Keo was ultimately convicted, and he appealed.

The SJC issued a 4-3 decision, written by outgoing Chief Justice Ireland, upholding the conviction. The majority rejected Mr. Keo’s claim that the prosecutor violated his Due Process rights to a fair trial by allowing the prosecutor to pursue two factually inconsistent theories. A prosecutor may switch tracks so long as the “core” of his case remains the same and he does not manipulate evidence or act in bad faith. In both Case 1 and Case 2, the prosecutor told the jury that it didn’t have to identify the triggerman but rather could convict if it found that the defendant participated in the crime with the intent to kill. This was done according to the “Zanetti rule” (jury may convict if it finds that defendant participated in the murder, alone or with others, with the intent to kill).

A closer call was whether or not defense counsel at Keo’s trial was ineffective for failing to seek admission of the prosecutor’s prior argument under a rule which allows for admission of out-of-court statements made by a “party opponent.” Defense counsel could have then quoted the prosecutor as saying that Keo was not the shooter. The majority found that counsel was not ineffective because the court had never squarely decided that prior closing arguments would be admissible in this type of situation. But even if it was, it would not have been admitted at Keo’s trial because the prosecutor’s two arguments were not inconsistent “as a matter of law.” Even though the prosecutor argued factually inconsistent theories, the prosecutor also reminded the jury that it didn’t have to positively ID the shooter and could convict under Zanetti principles. And even if the prior arguments had been admitted, it was not likely to have influenced the jury.

This engendered more than a little bit of head scratching from the dissent, led by Justice Gants, which pointed out that the prosecution’s case would have been “immeasurably more difficult to prove” if the jury was told that the government had previously argued that Mr. Keo was not the shooter. Moreover, if the codefendant was the real killer, as the defense argued, then to get a conviction the prosecution would have to go an additional step and prove that Keo had planned it that way, or that he instructed his codefendant to fire the shot. But evidence suggested that Keo was not within range of the victim and was not near his codefendant at the time the victim was killed.

To return to the headline of this post, – the upside is that the majority squarely overruled Commonwealth v. Arsenault which held that prior closing arguments were not admissible. It also sounded a cautionary note:

[P]rosecutors, in future cases, should proceed with caution when asserting inconsistent arguments in different trials involving the same crime, assuming no ‘innocent explanation,’ significant changes, or new evidence have come to light. We note that, particularly after Commonwealth v. Zanetti, supra, there is no need for a prosecutor to emphasize principal liability. If a prosecutor does so and the position is inconsistent with what he formerly argued at another trial for the same crime, he does so possibly at his own peril.