Friday, December 12, 2008

Harmless Error

The controversial term "harmless error" is often used by Texas appellate judges in their opinion response to criminal trial appeals. In Elizabeth Ramirez' appeal to the COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO Justice Alma L. Lopez describes comments made by prosecutor Phillip A. Kazen during his cross-examination of Elizabeth as "harmless error".

From the text of the appeal response:

In her fourth issue, Ramirez argues that the trial court erred by failing to grant a mistrial because of an improper comment by the prosecutor. Ramirez is referring to a remark that the prosecutor made in response [*7] to her testimony denying culpability. After Ramirez testified that she loved V.L. and that she would not hurt V.L in any way, the prosecutor remarked: "So says O.J., Ma'am." Ramirez's attorney then asked for a mistrial and the trial court denied the request.

In front of the jury, Kazen made a comment that made a direct comparison between Elizabeth's relationship with V.L. and that of O.J. Simpson with his murdered ex-wife Nicole Brown Simpson.

Later in the appeal response, Lopez describes the evidence against Elizabeth as being "overwhelming". This statement directly contradicts Prosecutor Kazen who tells the court that the crux of the evidence presented at trial consists of Elizabeth's word against her niece, V.L. There was no physical evidence or corroborating adult witness to the girls claim, only her statement and testimony.

Elizabeth's trial took place in February 1997, less than two years after O.J. Simpson's highly publicized murder trial and subsequent acquittal. The stark and powerful image of Nicole Brown Simpson's body lying on her doorstep with her throat slashed, spattered with blood, contrasted with her former husband's smug, self-assured attitude at a trial where he was defended by the best lawyers in America. These images had been repeatedly broadcast in both print and television media shortly before Elizabeth's trial. Those images had, and continue to have, a profound emotional effect on the general public. The belief that O.J. Simpson "got away with murder" was widespread.

For appeals justice Lopez to call Prosecutor Kazen's direct comparison of Elizabeth Ramirez with O.J. Simpson "harmless error" is colossal error. That Kazen's statement was, in fact error at all, is questionable. The magnitude of the visceral response that comparison and its associated images elicited in the general public, and therefore the jury, would have been tremendous. Taking into account Elizabeth's only defense was the credibility of her testimony before the jury, this statement becomes more than enough to inflame their minds, and grossly prejudice the verdict. In Elizabeth's cross-examination, Kazen's primary goal was to destroy her credibility. It seems unlikely he made this statement in error. Considering how quickly he responded to Elizabeth's claim that she loved V.L., it is seems more likely to have been premeditated and intentional. A more likely scenario is that Kazen had been waiting for Elizabeth to express her feelings for V.L., and had preplanned his response.

That statement in caused tremendous harm, and appears unlikely to have been made in error.

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