reversing conviction because of prosecutor’s “calculated effort used to evoke strong sympathetic emotions 9 Case: 11-50621 Document: 00512086425 Page: 10 Date Filed: 12/17/2012 No. 11-50621, 11-50632 In summary, we affirm Rosenberger’s convictions and sentences on all counts. AFFIRMED. for Christmas-time activity, the poor, pregnant women, diaperless children, and laid-off employees”
How later courts described this case
- reversing conviction because of prosecutor’s “calculated effort used to evoke strong sympathetic emotions 9 Case: 11-50621 Document: 00512086425 Page: 10 Date Filed: 12/17/2012 No. 11-50621, 11-50632 In summary, we affirm Rosenberger’s convictions and sentences on all counts. AFFIRMED. for Christmas-time activity, the poor, pregnant women, diaperless children, and laid-off employees”
- holding that proceedings enforcing Postal Service's regulations do not collaterally estop the government in criminal prosecutions
- holding that government’s enforcement of its employment contract against postal employee did not constitute punishment
- condemning “comments [that] had the ability to mislead the jury as well as ignite strong sympathetic -passions for the victims and against [the defendant].”
Written by the judges who cited it.
The opinion
WELLFORD, Senior Circuit Judge,
concurring.
This is a close and difficult case on the merits of these convictions at issue. I am in full agreement with parts I, II, and III of the opinion. I concur in part IV, but emphasize that I am satisfied that defendant’s counsel did open the door to a searching cross-examination of witness Hobart, who testified on direct examination for Payne, that he was “subject to different policies.” 1 I believe it was appropriate for the prosecutor to question Hobart about his familiarity with complaints made by patrons against Payne. The prosecutor, however, went too far in posing certain cross-examination questions, but it was defendant who sought to raise the specter of race in this case in order to justify his questionable conduct as a mail carrier in dealing with numbers of black patrons on his route. The prosecutor’s excessive zeal in this area, in my view, would not constitute reversible error except for his other misconduct described fully in the court’s opinion.
“The touchstone of due process analysis ... is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 , 102 S.Ct. 940, 947 , 71 L.Ed.2d 78 (1982). We look to see whether the prosecutor’s conduct was “so egregious so as to render the entire trial fundamentally unfair.” Cook v. Bordenkircher, 602 F.2d 117, 119 (6th Cir.), cert. denied, 444 U.S. 936 , 100 S.Ct. 286 , 62 L.Ed.2d 196 (1979). Under all the circumstances, the prosecutor’s conduct did render the trial and conviction fundamentally unfair.
. The district judge described Hobart’s claim that "policies were being applied unevenly" as to Payne. When a defendant charges, in effect, selective prosecution because of race, this presents sensitive problems for the prosecutor.