Petition for Writ of Certiorari — Woojin Cho, Petitioner v. New York

No. 23In the

Supreme Court of the United States

WOOJIN CHO,

Petitioner,

v.

PEOPLE OF THE STATE OF NEW YORK,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of The State of New York ,

A ppellate Term: First Department

PETITION FOR A WRIT OF CERTIORARI

Zachary Margulis-Ohnuma

Counsel of Record

Benjamin Notterman

ZMO Law PLLC

353 Lexington Avenue, Suite 900

New York, New York 10016

(212) 685-0999

zach@zmolaw.com

Counsel for Petitioner

327291

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

I.

Is it constitutional error for a prosecutor in summation

to express her personal belief that the defendant lied

on the stand?

II. In reviewing summation misconduct for harmless

error, is reversal required where there is any

“reasonable possibility” that the constitutional error

“might have contributed to the conviction?”

ii

RELATED PROCEEDINGS

i.

People of the State of New York v. Woojin Cho, Cnty.

Clerk’s No. 570516/22, Criminal Court of the City of

New York, Bronx County. Judgment entered July 19,

2022.

ii. People of the State of New York v. Woojin Cho, Cal.

No. 22-125 Supreme Court of the State of New York,

Appellate Term, First Department. Order denying

direct appeal entered July 3, 2023.

iii. People of the State of New York v. Woojin Cho, CLA2023-00778, State of New York Court of Appeals.

Order denying leave entered November 21, 2023.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . vi

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS INVOLVED . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3

A. Background and Trial Proceedings . . . . . . . . . . . 3

B. Appellate Proceedings . . . . . . . . . . . . . . . . . . . . . . 5

REASONS FOR GRANTING THE WRIT . . . . . . . . . . 6

I.

This Court should grant review to resolve

whether a prosecutor’s statement to the jury

accusing a testifying defendant of lying on

the witness stand amounts to constitutional

error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

iv

Table of Contents

Page

II. Certiorari is warranted because appellate

courts frequently misapply the Chapman

harmless error standard in cases involving

prosecutorial misconduct in summation . . . . . . 10

III. On review, this Court should reverse the

New York appellate decision because the

prosecutorial misconduct here could not

have been harmless under Chapman . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

v

TABLE OF APPENDICES

Page

APPENDIX A — ORDER OF THE STATE

OF NEW YORK COURT OF A PPEALS,

DATED NOVEMBER 21, 2023 . . . . . . . . . . . . . . . . . 1a

APPENDIX B — OPINION OF THE NEW

YORK SUPREME COURT, APPELLATE

TERM, FIRST DEPARTMENT, DATED

JUNE 30, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2a

vi

TABLE OF CITED AUTHORITIES

Page

CASES:

Anthony v. Louisiana,

143 S. Ct. 29 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Arizona v. Fulminante,

499 U.S. 279 (1991) . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Bellamy v. New York,

914 F.3d 727 (2d. Cir. 2019) . . . . . . . . . . . . . . . . . . . . . . 6

Berger v. United Sates,

295 U.S. 78 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9

Bruton v. United States,

391 U.S. 123 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Chapman v. California,

386 U.S. 18(1967) . . . . . . . . . . 3, 5, 10, 11, 12, 13, 16, 17

Crider v. People,

186 P.3d 39 (Colo. 2008) . . . . . . . . . . . . . . . . . . . . . . 7, 8

Davis v. Ayala,

576 U.S. 257 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Green v. Herbert,

01-cv-11881(SHS)(AJP), 2002 WL 1587133

(S.D.N.Y. July 18, 2002) . . . . . . . . . . . . . . . . . . . . . . . . 9

vii

Cited Authorities

Page

Griffin v. California,

380 U.S. 609 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Harrington v. California,

395 U.S. 250 (1969) . . . . . . . . . . . . . . . . . . . . . . . . 11, 15

Milton v. Wainwright,

407 U.S. 371 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

People v. Chaney,

155 A.D.2d 985, 548 N.Y.S.2d 129

(4th Dep’t 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

People v. Dowdell,

453 N.Y.S.2d 174

(N.Y. App. Div. 1st Dep’t 1982) . . . . . . . . . . . . . . . . . . 9

People v. Dunn,

158 A.D.2d 941, 551 N.Y.S.2d 432 (4th Dep’t) . . . . . . 9

People v. Friend,

211 P.3d 520, 545 (Cal. 2009) . . . . . . . . . . . . . . . . . . . . 8

People v. Hicks,

478 N.Y.S.2d 256

(N.Y. App. Div. 1st Dep’t 1984) . . . . . . . . . . . . . . . . 7, 9

People v. Rodgers,

756 P.2d 980 (Colo. 1988),

overruled on other grounds by

People v. Miller, 113 P.3d 743 (Colo. 2005) . . . . . . . . . 7

viii

Cited Authorities

Page

People v. Townsend,

483 N.E.2d 340 (Ill. App. 1st Dist. 1985) . . . . . . . . . 14

People v. Walters,

674 N.Y.S.2d 114 (N.Y. App. Div. 2d Dep’t 1998) . . . . 8

Rock v. Arkansas,

483 U.S. 44 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Satterwhite v. Texas,

486 U.S. 249 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

State v. Anthony,

309 So. 3d 912 (La. App. 5th Cir. 2020),

writ denied, 325 So. 3d 1067 (La. 2021),

writ denied 143 S.Ct. 29 (2022) . . . . . . . . . . . . . . . . . 13

State v. Austin,

422 P.3d 18 (Haw. 2018) . . . . . . . . . . . . . . . . . . . . . . 7, 8

State v. Lankford,

399 P.3d 804 (Idaho 2017) . . . . . . . . . . . . . . . . . . . . . . . 8

State v. Mussey,

893 A.2d 701 (N.H. 2006) . . . . . . . . . . . . . . . . . . . . . . 14

State v. Oehman,

562 A.2d 493 (Conn. 1989) . . . . . . . . . . . . . . . . . . . . . . 8

Sullivan v. Louisiana,

508 U.S. 275 (1993) . . . . . . . . . . . . . . . . . . . . . . . . 11, 18

ix

Cited Authorities

Page

Temple v. State,

342 S.W.3d 572 (Tex. App.--Hous.

(14th Dist.) 2010), aff’d, 390 S.W.3d 341

(Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Kravchuk,

335 F.3d 1147 (10th Cir. 2003) . . . . . . . . . . . . . . . . . . 14

United States v. Thomas,

377 F.3d 232 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 14

United States v. Woods,

710 F.3d 195 (4th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . 6

United States v. Young,

470 U.S. 1, 105 S.Ct. 1038,

84 L.Ed.2d 1 (1985) . . . . . . . . . . . . . . . . . . . . . 2, 6, 9, 15

Wend v. People,

235 P.3d 1089 (Colo. 2010) . . . . . . . . . . . . . . . . . . . . . . . 7

STATUES AND OTHER AUTHORITIES:

U.S. Const. Amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9

U.S. Const. Amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9

U.S. Const. Amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . 2, 9

28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

x

Cited Authorities

Page

Brandon L. Garrett, Innocence, Harmless Error,

and Federal Wrongful Conviction Law,

2005 Wis. L. Rev. 35 (2005) . . . . . . . . . . . . . . . . . . . . 14

Gregory Mitchell, Against “Overwhelming”

Appellate Activism: Constraining Harmless

Error Review, 82 Cal. L. Rev. 1335 (1994) . . . . . 13, 15

Harry T. Edwards, To Err Is Human, but Not

Always Harmless: When Should Legal Error

Be Tolerated? 70 N.Y.U.L. Rev. 1167 (1995) . . . . . . . 15

1

OPINIONS BELOW

The order of the New York Court of Appeals denying

Woojin Cho’s application for leave to appeal is unpublished.

App. 1a. The order of the Supreme Court, Appellate

Term, First Department affirming the judgment of the

Criminal Court of the City of New York, Bronx County

is unpublished. App. 2a-5a.

JURISDICTIONAL STATEMENT

The New York Court of Appeals entered judgment

denying Dr. Cho’s application for leave to appeal on

November 21, 2023. App. 1a. This Court has jurisdiction

under 28. U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

T he Fi f th A mendment to the Unit ed Stat es

Constitution provides in relevant part:

[N]or shall any person be . . . compelled in any

criminal case to be a witness against himself,

nor be deprived of life, liberty, or property,

without due process of law[.]

T he Si x th A mendment to the United States

Constitution provides in relevant part:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial,

by an impartial jury of the state and district

wherein the crime shall have been committed[.]

2

The Fourteenth Amendment to the United States

Constitution provides in relevant part:

[N]or shall any State deprive any person of

life, liberty, or property, without due process

of law[.]

INTRODUCTION

The Supreme Court recognized in United States

v. Young, 470 U.S. 1, 18 (1985), that it is improper for a

prosecutor to “express[] his personal opinion concerning

the guilt of the accused.” This case involves the application

of that principle to a closing argument that accuses a

defendant of lying on the witness stand. Unlike in Young,

where the Court reviewed the prosecutor’s misconduct for

plain error, the misconduct in this case was objected to.

Dr. Woojin Cho was tried in New York City Criminal

Court, Bronx County in May 2022 on charges arising

out of a medical exam in which he was alleged to have

touched the patient in an improperly sexual manner. Dr.

Cho and the complainant both testified. There was no

physical evidence and nobody else was present when the

offense was alleged to have occurred. In summation, the

prosecutor told the jury that Dr. Cho “lied” to them when

he denied committing the offense and suggested that

the jury should punish Dr. Cho for having “the audacity

to go up on the witness stand in a desperate attempt to

mislead you.”

Most jurisdictions, including New York, hold that a

prosecutor may show that a witness is lying, but may

not say it. Yet the consequences of such comments on

3

appeal vary, not so much because every case is different,

but because many courts do not recognize the error to

be constitutional in nature, and therefore do not apply

the rigorous standard of review mandated in Chapman

v. California, 386 U.S. 18, 24 (1967). Even where the

correct standard is identified, courts often misapply it

by focusing on whether there is sufficient evidence of

guilt to sustain the conviction rather than examining the

possible effect of the error on the jury. This Court should

grant review to ensure that lower courts recognize the

constitutional significance of summation misconduct and

apply the correct standard of review where the misconduct

undermines the fairness of the trial.

STATEMENT OF THE CASE

A. Background and Trial Proceedings

On May 25, 2022, a six-person Bronx jury convicted

Dr. Woojin Cho, an orthopedic surgeon, of forcible

touching, third degree sexual abuse, and second-degree

harassment based on allegations that he kissed and groped

a patient during a medical examination that he conducted

on September 4, 2020.

At trial, the complainant testified that Dr. Cho kissed

her on the cheek, put his finger in her vagina, and put

her hand on his penis. Transcript of the Trial of Woojin

Cho, Criminal Court, Bronx County, Docket No. CR013117-20BX (hereinafter “TT”) at 237:1 - 239:14. The

complainant and several of her family members testified

that the complainant intentionally overdosed on pain

medication following the examination. TT 348:6 - 352:2425. The People also played a recording of a controlled call

4

from four days after the examination in which Dr. Cho

and the complainant mentioned the concept of a “sugar

daughter” and the possibility of meeting socially. TT

252:18, TT 441:22 - 442:6.

The defense relied principally on Dr. Cho’s own

testimony. Dr. Cho conceded that he acted unprofessionally

by mentioning “sugar daughters” with the complainant

and proposing that they meet socially. TT 695. He testified

that he conducted an appropriate physical examination

of the complainant during the September 4 appointment.

TT 699 - 705. Dr. Cho denied touching the complainant’s

vagina or touching her in any way that was not part of

the physical examination. TT 726:22-23. Finally, Dr.

Cho testified that he did not understand parts of the

conversation with the complainant on the controlled call

because he has difficulty understanding English over the

phone and was driving in New York City at the time of the

call. TT 708:20 - 710:17.

In summation, the prosecutor went beyond attempting

to undermine Dr. Cho’s credibility and attacked him for

his decision to testify, stating that it constituted proof of

his guilt. The prosecutor argued that Dr. Cho “didn’t have

to testify[,] he had the right to remain silent,” and told the

jury that, “if you find the defendant was dishonest when

testifying, then you can hold that against him and you can

find that the reason he lied is that he has a consciousness of

guilt.” TT 824:15-17, 824:25-825:4. The court sustained an

objection to that comment, but the prosecutor continued:

“So don’t just ignore his lies, ladies and gentlemen. Put

the fact that he had the audacity to go up on the witness

stand in a desperate attempt to mislead you and put it

against all of the overwhelming evidence of his guilt.” TT

5

825:7-11. The jury convicted Dr. Cho of all three counts.

On July 19, 2022, Judge Audrey Stone sentenced Dr. Cho

to nine months in jail.

B. Appellate Proceedings

Dr. Cho appealed his conviction to the Appellate Term,

First Department. Dr. Cho argued that the prosecutor’s

summation comments criticizing Dr. Cho for having “the

audacity” to testify and imploring the jury “don’t just

ignore his lies,” violated Dr. Cho’s right under the state

and federal constitutions to testify in his own defense.

In briefing before the New York Appellate Term, Dr.

Cho explained that the prosecutor’s misconduct amounted

to constitutional error. See Br. for Def.-Appellant at 36-41.

Dr. Cho argued that, under Chapman v. California, 386

U.S. 18 (1967), comments that deprecate a defendant’s right

to testify require reversal unless “there is no reasonable

possibility that the error might have contributed to

defendant’s conviction and that it was thus harmless

beyond a reasonable doubt.” Br. for Def.-Appellant at 36.

The Appellate Term affirmed the conviction. In a

two-page opinion, the court concluded that, “taken as a

whole, the bulk of the challenged remarks were either fair

response to defense counsel’s arguments on summation

or fair comment on the evidence, and any improprieties

were not so egregious as to deprive defendant of a fair

trial, including the prosecutor’s improper references to

defendant as a ‘liar.’” App. 3a, 4a. On November 21, 2023,

the New York Court of Appeals denied Dr. Cho’s leave to

appeal. App. 1a.

6

REASONS FOR GRANTING THE WRIT

I.

This Court should grant review to resolve whether

a prosecutor’s statement to the jury accusing a

testifying defendant of lying on the witness stand

amounts to constitutional error.

A prosecutor who expresses her personal opinion

about the credibility of a witness or the guilt of the accused

poses “two dangers” to due process. United States v.

Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 1048, 84 L.Ed.2d

1 (1985). First, such comments “convey the impression

that evidence not presented to the jury, but known to the

prosecutor, supports the charges against the defendant.”

Id. (citing Berger v. United Sates, 295 U.S. 78, 88-99

(1935)). Second, a “prosecutor’s opinion carries with it

the imprimatur of the Government and may induce the

jury to trust the Government’s judgment rather than its

own view of the evidence.” Id.; see Bellamy v. New York,

914 F.3d 727, 763 (2d. Cir. 2019) (“[I]t is the height of

summation misconduct for a prosecutor to argue to the

jury his personal opinion as to a defendant’s guilt.”).

Rarely are these dangers more acute than when a

prosecutor directly accuses a criminal defendant of lying

on the stand. See, e.g., United States v. Woods, 710 F.3d

195, 203 (4th Cir. 2013) (“The gravity of these risks is

amplified in the case of a criminal defendant exercising

his constitutional right to testify in his own defense.”).

Stating that the defendant’s testimony is “lies” or that

the defendant is a “liar” may influence the jury to vote

guilty based on personal opinion rather than on the

evidence admitted at trial. Such comments contain both

a moral judgment about the defendant’s character and

7

factual assertions that the defendant committed the crime

and lied about it on the stand—and that the prosecutor

knows that the defendant is lying and that he is guilty.

See, e.g., State v. Austin, 422 P.3d 18, 51 (Haw. 2018);

Crider v. People, 186 P.3d 39, 42 (Colo. 2008) (to accuse

the defendant of lying is to express a “personal opinion

concerning the guilt of the accused”).

Personal attacks on a defendant’s credibility work an

additional harm when directed at the defendant’s decision

to testify rather than the testimony itself. “Because a

defendant’s constitutional right to remain silent cannot be

used against him to draw an inference of guilt, it follows

that a defendant’s exercise of his constitutional right to

a trial by jury cannot be used against him to create an

inference of guilt.” People v. Rodgers, 756 P.2d 980, 983

(Colo. 1988), overruled on other grounds by People v.

Miller, 113 P.3d 743 (Colo. 2005). “Such prosecutorial

imputation of guilt clashes head-on with the presumption

of innocence and undermines the very foundations on

which our system of criminal justice is built.” Rodgers,

756 P.2d at 986 (Quinn, C.J., dissenting). See also People

v. Hicks, 478 N.Y.S.2d 256, 262-63 (N.Y. App. Div. 1st

Dep’t 1984) (vacating conviction where the prosecutor’s

personal attack on the defendant’s credibility amounted

to “urging the jury to draw a negative inference from the

defendant’s decision to [testify].”).

Although state courts broadly discourage prosecutors

from calling the defendant a liar or making similar

comments, there is no consensus as to whether such

errors are constitutional in nature. Compare Wend v.

People, 235 P.3d 1089, 1096 (Colo. 2010) (en banc) (finding a

reversible due process violation where prosecutor referred

8

to defendant’s out-of-court statements as “lies and lies and

lies”), with State v. Lankford, 399 P.3d 804, 827 (Idaho

2017) (finding that the “repeated use of the term ‘liar’

and its various grammatical forms is troubling and illadvised” but not applying constitutional harmless-error

review.), Crider v. People, 186 P.3d at 42 (“[T]hreatening

to mislead a jury with expressions of personal opinion or

inflammatory comments . . . does not rise to the level of

constitutional error.”).

A thorough opinion by the Supreme Court of Hawaii

noted that “courts across the country have recognized”

that using the word “lie” in reference to a witness’s

testimony is unfairly prejudicial, but that many courts

have, with “deep uneasiness,” accepted the practice. State

v. Austin, 422 P.3d 18, 51, 55 (Haw. 2018) (collecting cases).

In some jurisdictions, courts have affirmatively held

that a prosecutor may call the defendant a “liar” if the

defendant’s testimony “contradicts the strong evidence of

his guilt.” See, e.g., People v. Friend, 211 P.3d 520, 545 (Cal.

2009); see also State v. Oehman, 562 A.2d 493 (Conn. 1989)

(holding that it was “unprofessional” but not improper to

call the defendant a “liar”).

Even within the state of New York there is disagreement

about how to review improper personal attacks on a

defendant’s credibility. The New York Court of Appeals

has not addressed whether and under what circumstances

an accusation that the defendant lied deprives the

defendant of a fair trial. Intermediate courts condemn the

tactic but disagree on whether reversal is an appropriate

remedy. Compare People v. Walters, 674 N.Y.S.2d 114, 116

(N.Y. App. Div. 2d Dep’t 1998) (reversing where prosecutor

referred to defendant’s testimony as “lies on top of lies,

9

on top of lies”); People v. Dowdell, 453 N.Y.S.2d 174 (N.Y.

App. Div. 1st Dep’t 1982) (finding prosecutor’s comments

that the defendant lied on the stand denied defendant a

fair trial); People v. Hicks, 478 N.Y.S.2d at 262–63; with

People v. Dunn, 158 A.D.2d 941, 942, 551 N.Y.S.2d 432,

432 (4th Dep’t) (“although the prosecutor was overzealous

and improperly ... called defendant a liar, we cannot say

under all the circumstances that defendant was deprived

of a fair trial”); People v. Chaney, 155 A.D.2d 985, 986,

548 N.Y.S.2d 129, 130 (4th Dep’t 1989) (“Although the

prosecutor acted overzealously ... in one instance calling

defendant a liar, we cannot say under all the circumstances

that defendant was deprived of a fair trial.”). See generally,

Green v. Herbert, 01-cv-11881(SHS)(AJP), 2002 WL

1587133, at *17 (S.D.N.Y. July 18, 2002) (observing that an

improper comment about a defendant’s credibility “does

not necessarily deprive the defendant of a fair trial as a

matter of New York state law.”).

We urge the Court to hold that a prosecutor commits

constitutional error by expressing her personal belief

that the defendant lied on the stand. To do so, the Court

need only apply the principle it recognized in Berger

and Young: that a prosecutor’s expressed opinion about

key issues of fact risks depriving the defendant of a trial

by an “impartial” jury. U.S. Const. Amend. VI. Where

the opinion takes aim at a defendant’s testimony, the

prosecutor’s statements also contravene the defendant’s

separate, related right to testify in his own defense. See,

generally, Rock v. Arkansas, 483 U.S. 44, 52-53 (1987)

(deriving the right to testify from the Fifth, Sixth, and

Fourteenth Amendments).

The prosecutor’s comments in this case were a frontal

attack on Dr. Cho’s trial rights. The jury’s verdict hinged

10

on whether it credited the complainant or Dr. Cho. The

prosecutor put a heavy thumb on the scale by referring to

Dr. Cho’s testimony as “lies,” criticizing him for having the

“audacity” to exercise his right to testify, and telling the

jury he was trying to “mislead” them. TT 825:7-11. The

prosecutor exceeded the bounds of legitimate advocacy

by weaponizing Dr. Cho’s rights against him. This was

constitutional error and should have been reviewed under

the harmless-error standard articulated in Chapman v.

California, 386 U.S. 18, 24 (1967).

II. Certiorari is warranted because appellate courts

frequently misapply the Chapman harmless

error standard in cases involving prosecutorial

misconduct in summation.

This Court established the standard of review for

constitutional trial errors in Chapman v. California, 386

U.S. 18, 24 (1967). Chapman concerned a prosecutor’s

argument that the jury should draw a negative inference

from the defendant’s failure to testify, an argument

permitted under California law but forbidden by the

Court’s recent holding in Griffin v. California, 380 U.S.

609 (1965). The California Supreme Court affirmed the

conviction in light of “substantial evidence” in the record

that “proof of guilt” was “overwhelming.” 386 U.S. at 23,

n.7. This Court reversed, holding that a different, stricter

standard applies to constitutional errors: “the beneficiary

of a constitutional error [must] prove beyond a reasonable

doubt that the error complained of did not contribute to

the verdict obtained.” 386 U.S. at 24. That remains the

standard today. See, e.g., Davis v. Ayala, 576 U.S. 257, 267

(2015) (reaffirming Chapman).

11

Chapman explained that California’s standard

of review was deficient in its “overemphasis” on the

existence of “overwhelming evidence” of guilt. Chapman

v. California, 386 U.S. at 23. In other words, the task for

appellate courts is not to determine whether a reasonable

jury would have convicted the defendant had there been no

error, but whether there was any “reasonable possibility”

that the error “might have contributed” to the jury’s

decision. Id. at 23. See also Sullivan v. Louisiana, 508

U.S. 275, 279 (1993) (“The inquiry, in other words, is

not whether, in a trial that occurred without the error,

a guilty verdict would surely have been rendered, but

whether the guilty verdict actually rendered in this trial

was surely unattributable to the error.”). “That must be

so, because to hypothesize a guilty verdict that was never

in fact rendered—no matter how inescapable the findings

to support that verdict might be—would violate the jurytrial guarantee.” Id. at 279–280.

Chapman established three things. First, not

every constitutional error requires reversal. Second,

a constitutional error requires reversal unless it is

harmless beyond a reasonable doubt, i.e. unless there is

no “reasonable possibility” that the error “contributed

to the conviction.” 386 U.S. at 23. Third, where there is

a reasonable possibility that the error contributed to the

guilty verdict, reversal is necessary even if the reviewing

court finds that properly admitted evidence was sufficient,

perhaps overwhelmingly sufficient, to convict.

As to the third point, the Court’s subsequent harmlesserror cases made clear that overwhelming evidence can, in

some cases, be dispositive of harmless-error review. For

example, in Harrington v. California, 395 U.S. 250, 254

12

(1969), the Court upheld a conviction despite the erroneous

admission of a codefendant’s confession in violation of

Bruton v. United States, 391 U.S. 123 (1968), because

the state’s case was “so overwhelming” and the tainted

evidence was “cumulative.” The Court emphasized that it

was not detracting from Chapman. Id. Rather, the weight

of the evidence against Harrington was so strong that to

that to overturn the conviction would effectively hold that

“no violation of Bruton can [ever] constitute harmless

error,” which would create the sort of automatic-reversal

rule that Chapman rejected. Thus, the Court concluded,

“[w]e do not depart from Chapman; nor do we dilute it by

inference. We affirm it.” Id.

Since then, in Arizona v. Fulminante, 499 U.S.

279 (1991), the Court affirmed that Chapman requires

appellate courts to conduct a searching review of the

record, considering the nature of the constitutional error, its

connection to properly admitted evidence, and its possible

effect on the jury. Id. Fulminante involved the improper

admission of an involuntary confession at a murder trial.

The jury had been shown corroborative physical evidence

about victim’s wounds as well as testimony about a second,

voluntary confession that largely mirrored the first one.

After noting the “profound impact” that confessions can

have on a jury, the Court determined it could not rule

out the possibility that the initial confession influenced

how the jury assessed the credibility of the witness who

testified about the second one. Id. at 298-99. Thus, despite

the strength of the untainted evidence, the Court held that

the state had failed to show beyond a reasonable doubt

that the involuntary confession did not contribute to the

conviction. Id. at 295-96.

13

Many appellate courts do not apply the exacting

review mandated by Chapman and Fulminante in cases

of constitutional prosecutorial misconduct. Instead, they

do what Chapman and Fulminante explicitly forbade:

they imagine a trial in which the misconduct never took

place and then determine whether the jury would have

convicted anyway, without considering the error’s effect

on the actual jury. By analyzing constitutional error in

this way, the reviewing court improperly assumes the

role of factfinder. See, e.g., Gregory Mitchell, Against

“Overwhelming” Appellate Activism: Constraining

Harmless Error Review, 82 Cal. L. Rev. 1335 (1994)

(discussing “confusions” among “both federal and state

courts” on the role that “overwhelming evidence” plays

in Chapman review).

One vivid example of this problematic analysis is State

v. Anthony, 309 So. 3d 912, 924 (La. App. 5th Cir. 2020),

writ denied, 325 So. 3d 1067 (La. 2021), writ denied 143

S.Ct. 29 (2022). There, a prosecutor gave sworn testimony

vouching for the police investigation and referring to

evidence outside the record. The appellate court declined

to reverse, because “the evidence at trial supports

defendant’s convictions, even excluding [the prosecutor’s]

testimony.” 309 So.3d at 922. As several members of this

Court acknowledged, the state court’s holding, “based

solely on the sufficiency of the evidence that remained

after excising [the prosecutor’s] testimony . . . has [been]

repeatedly repudiated” by Chapman and its progeny.

Anthony v. Louisiana, 143 S. Ct. 29, 35 (2022) (Sotomayor,

J., dissenting).

The Louisiana court’s fixation on the sufficiency

of evidence, rather than an error’s prejudicial effect,

14

pervades other state and federal jurisdictions. See

United States v. Thomas, 377 F.3d 232, 245 (2d Cir. 2004)

(affirming a conviction where prosecutor argued that

defendant “lied,” because defendant failed “to demonstrate

that, absent the misconduct, he would not have been

convicted.”); United States v. Kravchuk, 335 F.3d 1147,

1154 (10th Cir. 2003) (concluding, without explanation, that

a prosecutor’s comment that defendant “lied and lied and

lied” was harmless in light of “overwhelming” evidence);

Temple v. State, 342 S.W.3d 572, 617 (Tex. App.--Hous.

[14th Dist.] 2010), aff’d, 390 S.W.3d 341 (Tex. Crim. App.

2013) (affirming conviction in light of “the certainty of

conviction absent the misconduct,” where prosecutor

accused the defendant of lying on the stand); People v.

Townsend, 483 N.E.2d 340 (Ill. App. 1st Dist. 1985) (“[P]

rosecutorial remarks do not generally mandate reversal

unless . . . the jury would likely have reached a contrary

verdict had they not been made.”) (citations omitted);

see generally Brandon L. Garrett, Innocence, Harmless

Error, and Federal Wrongful Conviction Law, 2005

Wis. L. Rev. 35, 59 (2005) (observing that courts have

replaced Chapman review with an assessment of whether

“independent evidence of guilt taken alone could support

the conviction.”).

Courts have drifted from Chapman in other critical

ways. The Second Circuit has placed the burden on the

defendant to show that a prosecutor’s improper, objectedto comment was not harmless. See United States v.

Thomas, 377 F.3d at 245. Some jurisdictions consider

whether the prosecutor’s conduct was deliberate, State v.

Mussey, 893 A.2d 701, 708 (N.H. 2006), a factor that has

no bearing on the fairness of a particular trial.

15

By focusing primarily on the weight of evidence,

appellate courts risk affirming convictions in cases where

prosecutorial error affected the trial. See, e.g., Mitchell,

supra, at 1336. This approach usurps the jury’s role as

factfinder. See, e.g., Harry T. Edwards, To Err Is Human,

but Not Always Harmless: When Should Legal Error Be

Tolerated? 70 N.Y.U.L. Rev. 1167 (1995) (criticizing “guiltbased” approaches to harmless error review). Although

the Court’s post-Chapman decisions on harmless error

contain observations about “overwhelming evidence,”

most of those cases concerned erroneous evidentiary

rulings as opposed to improper argument. See, e.g.,

Harrington, 395 U.S. at 254 (improper admission of codefendant’s confession); Milton v. Wainwright, 407 U.S.

371 (1972) (improper admission of defendant’s involuntary

confession); Satterwhite v. Texas, 486 U.S. 249 (1988)

(improper admission of expert testimony about future

dangerousness).

A standard focused on “overwhelming evidence”

becomes incoherent when the trial error relates to

summation comments, as in Chapman, as opposed to the

admission or exclusion of evidence. Where an evidentiary

ruling is at issue, an appellate court may attempt to

evaluate the error’s effect by reference to the aggregate

weight of properly admitted evidence. But errors in

summation cannot be easily mapped onto the factfinding

process because they do not affect what evidence the jury

hears, but rather “the jury’s ability to judge the evidence

fairly.” United States v. Young, 470 U.S. at 12.

Here, the prosecutor expressed her personal opinion

that Dr. Cho perjured himself and lied to the jury. The

error is clear, but its effect is difficult to assess. The

16

comments may have caused the jurors not to believe Dr.

Cho, or they may have had no effect at all. Given the

inherent limitations of appellate review and importance

of trial rights, reversal is necessary unless there is no

reasonable possibility that the error contributed to the

jury’s verdict.

The Court should grant review to ensure that state and

federal courts correctly apply Chapman to constitutional

summation misconduct.

III. On review, this Court should reverse the New

York appellate decision because the prosecutorial

misconduct here could not have been harmless

under Chapman.

In this case, the Appellate Term failed to explain why

the prosecutor’s improper statements were harmless,

and instead concluded that “any improprieties were not

so egregious as to deprive defendant of a fair trial . . .

including the prosecutor’s improper reference to defendant

as a ‘liar[.]’” App. 3a, 4a. The Appellate Term would not

have reached that conclusion had it applied the correct

standard of review under Chapman.

This case charged sexual assault, but the only witness

was the complainant and the only viable defense was

Dr. Cho’s own testimony. Dr. Cho’s right was to have

an impartial jury decide who was telling the truth. The

prosecutor flagrantly undermined that right when she

implored the jury to not “ignore his lies” and to punish

Dr. Cho for “having the audacity to go up on the witness

stand in a desperate attempt to mislead you.” TT 825:7-11.

As many courts in New York and around the country have

17

held, such personal attacks on a defendant’s credibility

subvert the jury’s exclusive role as the arbiter of facts.

Indeed, the trial judge acknowledged the impropriety by

sustaining the defense’s prior objection, and the appellate

court characterized the comments as improper.

Of course, the jury might have reached that the same

verdict had the prosecutor not improperly disparaged

Dr. Cho and his decision to testify. For instance, the jury

might have discredited Dr. Cho based on his demeanor,

the embarrassing phone conversation Dr. Cho had with

the complainant, or its assessment of the complainant’s

testimony. But how could an appellate court find, on this

record, that there is no “reasonable possibility” that

the prosecutor’s aspersions “contributed” to the jury’s

verdict? Chapman, 386 U.S at 23. The only evidence that

arguably corroborated the complainant’s testimony was

the controlled call. TT 252:18, TT 441:22 - 442:6. Yet, the

jury’s assessment of that call depended on whether they

believed Dr. Cho when he testified that he had trouble

understanding the complainant during the controlled

call because he struggles to understand English over

the phone and was driving in New York City at the

time of the conversation. TT 708:20 - 710:17. And there

were reasons to believe him. It was clear from Dr. Cho’s

testimony that English was not his first language, and

Dr. Cho can be heard on the controlled call saying that he

was driving a car and emphasizing that when he touched

the complainant he did so as an appropriate part of the

physical examination. Id.

Accordingly, there is no way to find the prosecutor’s

comments harmless beyond a reasonable doubt without

imagining a trial in which they did not occur, which this

18

Court forbids. See, e.g., Sullivan v. Louisiana, 508 U.S.

at 279–280. The Court should grant review and reverse

the conviction.

CONCLUSION

Certiorari should be granted so that the Court can

address the important question of when a prosecutor’s

summation stating that the defendant lied on the witness

stand amounts to constitutional error and to instruct

appellate courts to apply the Chapman harmless error

analysis.

Respectfully submitted,

Zachary Margulis-Ohnuma

Counsel of Record

Benjamin Notterman

ZMO Law PLLC

353 Lexington Avenue, Suite 900

New York, New York 10016

(212) 685-0999

zach@zmolaw.com

Counsel for Petitioner

Dated: February 19, 2024

New York, New York

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — ORDER OF THE STATE

OF NEW YORK COURT OF A PPEALS,

DATED NOVEMBER 21, 2023 . . . . . . . . . . . . . . . . . 1a

APPENDIX B — OPINION OF THE NEW

YORK SUPREME COURT, APPELLATE

TERM, FIRST DEPARTMENT, DATED

JUNE 30, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2a

1a

Appendix

APPENDIX A —

ORDERAOF THE STATE

OF NEW YORK COURT OF APPEALS,

DATED NOVEMBER 21, 2023

STATE OF NEW YORK

COURT OF APPEALS

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent,

v.

WOOJIN CHO,

Appellant

BEFORE: HON. ROWAN D. WILSON, Chief Judge

ORDER DENYING LEAVE

Appellant having applied for leave to appeal to Court

pursuant to Criminal Procedure Law § 460.20 from an

order in the above-captioned case;1

UPON the papers filed and due deliberation, it is

ORDERED that the application is denied.

Dated: November 21, 2023

/s/

Chief Judge

1. Description of Order: Order of the Appellate Term, First

Department, decided July 3, 2023, affirming a judgment of the

Criminal Court of the City of New York, Bronx County, rendered

July 19, 2022.

2a

AppendixOF

B THE NEW YORK

APPENDIX B — OPINION

SUPREME COURT, APPELLATE TERM, FIRST

DEPARTMENT, DATED JUNE 30, 2023

SUPREME COURT, APPELLATE TERM,

FIRST DEPARTMENT

THE PEOPLE OF THE STATE

OF NEW YORK,

Respondent,

v.

WOOJIN CHO,

Defendant-Appellant.

June 2023 Term

Brigantti, J.P., Michael, James, JJ.

NY County Clerk’s No.

570516/22

Calendar No. 22-125

Defendant appeals from a judgment of the Criminal

Court of the City of New York, Bronx County (Audrey

E. Stone, J.), rendered July 19, 2022, after a jury trial,

convicting him of forcible touching, sexual abuse in the

third degree and harassment in the second degree, and

imposing sentence.

3a

Appendix B

Per Curiam.

Judgment of conviction (Audrey E. Stone, J.), rendered

July 19, 2022, affirmed.

Defendant was convicted, after a jury trial, of forcible

touching (see Penal Law § 130.52[1]), third-degree sexual

abuse (see Penal Law § 130.55) and second-degree

harassment (see Penal Law § 240.26[1]). The People’s proof

was strong and persuasive, and is not now challenged by

defendant on sufficiency or weight of the evidence grounds.

Complainant credibly testified that during a consultation,

defendant, a spinal surgeon, asked her if she wanted to be

his “sugar baby;” removed her bra; kissed her on the neck;

squeezed her breasts; inserted his fingers into her vagina,

and placed her hand on his erect penis. The complainant’s

account was corroborated by other evidence, including a

controlled telephone call with police, wherein defendant

told complainant she should be “discreet,” that he had

many “sugar daughters,” and then giggled and replied

“absolutely” when asked by the complainant if he enjoyed

touching her.

By failing to make objections or request further relief

after the court took curative action, defendant failed

to preserve most of his challenges to the prosecutor’s

summation, and we decline to review them in the interest

of justice. As an alternative holding, we find no basis for

reversal. Taken as a whole, the bulk of the challenged

remarks were either fair response to defense counsel’s

arguments on summation or fair comment on the evidence,

and any improprieties were not so egregious as to deprive

4a

Appendix B

defendant of a fair trial (see People v Garland, 155 AD3d

527, 529 [2017], affd 32 NY3d 1094 [2018], cert denied

US

, 140 S Ct 2525 [2020]; People v Feola, 154 AD3d

638, 639 [2017], lv denied 31 NY3d 1013 [2018]), including

the prosecutor’s improper references to defendant as a

“liar” (see People v Feliciano, 133 AD3d 469, 470 [2015],

lv denied 27 NY3d 1150 [2016]). In any event, the court’s

curative instructions were sufficient to prevent any

prejudice (see People v Overlee, 236 AD2d 133 [1997], lv

denied 91 NY2d 976 [1998]). Nor could the prosecutor’s

comments be perceived as vouching for the credibility of

the complainant, since those remarks were a permissible

comment on a matter of credibility, and the prosecutor did

not become an unsworn witness (see People v Ringer, 90

AD3d 439, 439-440 [2011], lv denied 18 NY3d 927 [2012];

People v Massie, 305 AD2d 116, 117 [2003], affd 2 NY3d

179 [2004]).

The evidentiary rulings challenged on appeal, to the

extent preserved, were provident exercises of the court’s

discretion that did not cause defendant any prejudice.

The court properly exercised its discretion in limiting

defendant’s use of leading questions on direct examination

(see People v Martina, 48 AD3d 1271, 1272 [2008]).

Nor was defendant denied a fair trial when the court

precluded the testimony of defendant’s secretary, who was

not present during the controlled call and had no direct

knowledge of the facts (see People v Scarola, 71 NY2d

769, 777 [1988]). Finally, the testimony of complainant

and a physician’s assistant at Jacobi Hospital - that the

complainant ingested 15-20 tablets of a prescription

medication for pain management and anxiety immediately

5a

Appendix B

after defendant’s conduct, resulting in her hospitalization

because she felt upset and “very sad”- was probative of

complainant’s lack of consent and not unduly prejudicial

(see People v Frumusa, 29 NY3d 364, 372 [2017]). In any

event, even assuming the trial court erred in admitting

the challenged evidence or precluding testimony, any error

was harmless in light of the overwhelming evidence of

defendant’s guilt (see People v Crimmins, 36 NY2d 230

[1975]).

THIS CONSTITUTES THE DECISION AND

ORDER OF THE COURT.

I concur

I concur

I concur