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FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL.

The Second Department, after finding the court’s allowing the wearing of T-shirts memorializing the murder victim and three (unpreserved) instances of prosecutorial misconduct harmless individually, the cumulative effect of the “harmless” errors was deemed sufficient to reversed defendant’s conviction:

On the second day of trial, defense counsel advised the Supreme Court that “quite a few members of the deceased’s family are present in the court, they are all wearing T-shirts with his photograph on it, displayed in a fairly prominent position on the front of their T-shirts.” Defense counsel requested that the court instruct the spectators to remove the T-shirts or turn them inside out. After asking the members of the audience to stand up for a moment so as to view the T-shirts, the court stated that there was no basis to limit their right to wear items or make a statement since they had a First Amendment right to do so. The court also stated: “It should be noted that the Court, in viewing the audience, saw nothing outstanding other than T-shirts with some pictures and some words. One of the picture[s] may be of the [victim], I can’t tell from this distance. But, at any rate, that’s my ruling for the record, over counsel’s objection.” * * *

The prosecutor improperly appealed to the jury’s sympathy by eliciting testimony from the victim’s mother that the victim’s wife was expecting a child and expressing sympathy for her loss … . * * *

That error was compounded when, during summation, the prosecutor improperly appealed to the jury’s sympathy by commenting that when the victim left his house on the night in question, he had no idea that he was “never going to see his family again” and “never going to be able to see his girlfriend again,” and stating that it was a “tragedy” that his “24-year-old life was taken away by this man here (indicating), [the defendant]” … . The prosecutor committed misconduct of a different sort during summation when, while playing a surveillance video introduced into evidence at trial, she identified certain barely visible figures on the screen as the victim and the defendant. Throughout the course of these comments, the Supreme Court repeatedly instructed the jury that it alone should assess the video and not rely on the prosecutor’s comments, but the prosecutor persisted in her characterization of the figures on the screen.  People v Holiday, 2016 NY Slip Op 05816, 2nd Dept 8-17-16

CRIMINAL LAW (FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)/ATTORNEYS (CRIMINAL LAW, FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)/PROSECUTORIAL MISCONDUCT (FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)/HARMLESS ERROR (FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)/CUMULATIVE EFFECT OF INDIVIDUAL ERRORS (CRIMINAL LAW, (FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)

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