Prosecutor`s Exhortation to `Send a Message` with Guilty Verdict Rendered Sexual Assault Conviction Unconstitutional
A prosecutor in West Virginia who urged the jury to “send a message to the community” with a guilty verdict in a sexual assault case crossed the line and rendered the conviction unconstitutional, the U.S. Court of Appeals for the Fourth Circuit held in granting federal habeas corpus relief. Plymail v. Mirandy, 2021 U.S. App. LEXIS 28846 (4th Cir. Aug. 10, 2021).
It was a “he said, she said” case, as most date rape cases tend to be. It started out as consensual sex between Charles Plymail and another woman but ended in an altercation and an accusation that he raped her. He said she bit him during sex so he slapped her. She said she changed her mind during sex and Plymail got mad and hit her. But the highlight of the case wasn`t about any of this.
Instead, when defense counsel told the jury it`s too easy for a woman to yell “rape” these days and the guy has no defense, the prosecutor didn`t object but rather went into his own 12-minute tirade on how the jury must stop “sadomasochistic” monsters like Plymail.
The prosecutor told the jury to imagine their own daughters going off to college and meeting a seemingly “nice” guy, who really turns out to be a “trickster lover.” He claimed — without any evidence — that “seventy percent of rapes go free” without charges. He said that if the jury didn`t return a guilty verdict, it would “send a message so loud and clear to men on dates who have the tendency of the sweet tooth of sadomasochism” that they`re free to rape a woman without fear of consequences. He urged a guilty verdict “for womankind, for all of us.”
Plymail was convicted and sentenced to 15-to-life. But then his appeal sat for over 20 years without a decision. The reasons for this are disturbing but played no part in the Fourth Circuit`s decision to grant habeas relief. In a well-reasoned opinion, the Court said that while a prosecutor`s comments won`t ordinarily rise to a constitutional violation, they did in this case.
These appeals to the jury violated the fundamental fairness due to every criminal defendant. A criminal trial is about the evidence of the defendant`s actions. Not of womankind. Not a license for our daughters to be abused by those with the sweet tooth of sadomasochism. Not societal messages of any sort.
I`ve often written about prosecutorial misconduct that makes its way through the federal courts, only to find that relief can`t be granted because of the Antiterrorism and Effective Death Penalty Act (AEDPA). Passed in 1996 by Pres. Bill Clinton to purportedly speed up the death penalty and prevent terrorism, something the AEDPA has utterly failed to do, it has tied the hands of federal judges in cases where prosecutors blatantly and willfully violate a defendant`s rights. That`s because if the claim is procedurally-defaulted, like it was in Plymail`s case, it is extremely difficult for a habeas petitioner to overcome this obstacle and have their claim heard. No matter how strong the claim, it`s dead in the water.
Fortunately for Plymail, the state failed to raise the procedural-default argument so the Fourth Circuit considered it waived (really it was forfeited) and addressed the claim on its merits. The court did note that had the state raised the issue it would have had no choice but to deny relief. The law (AEDPA) says that it must.
How many cases have major constitutional violations, like this one, yet are upheld by the federal courts because of the AEDPA? How many prosecutors should have been held accountable for violating a defendant`s constitutional rights but weren`t because of the AEDPA? I see it too much. In my book Federal Habeas Corpus for State Prisoners: An Insider`s Guide, I`ve dedicated a lot of my time explaining how the AEDPA works against state prisoners so that they can find the way around it, if a way exists. Much of the AEDPA is not a jurisdictional bar and can either be waived or forfeited by the prosecutor responding to the petition. In other words, it can be overlooked or purposely ignored by the prosecutor. But you have to jump on that and let the court know. Not every court will allow a defaulted claim if not urged to do so.
Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. He is a consultant in federal post-conviction procedure and an authority on federal sex offense issues.
