Pursuant to the Sixth Amendment, “[i]n all criminal prosecutions, the accused shall enjoy the right…to have the assistance of counsel for his defense.” Moreover, improper trial commentary by the prosecutor on a defendant’s reliance on the assistance of counsel can violate the Due Process Clause. In Commonwealth v. Jenkins, 2026 WL 2967347 (Pa. 2026), the Supreme Court of Pennsylvania found that a prosecutor’s trial commentary was improper, but somewhat surprisingly found that the error was harmless.
In Jenkins, Ronald Jenkins was accused of raping a victim in a motel room. At the time, “the victim and her then-boyfriend, now-husband, Damon Robinson…, were living in an apartment located in Lower Paxton Township, Dauphin County, along with their two children.
At Jenkins’s trial, during closing arguments, the prosecutor told the jurors:
I mean over and over and over again [Appellant] denies anything happening in that — in that home. In that motel. All right. You say to yourselves, okay, well, you know what, they’ve been friends for [thirty] years. He didn’t want to say me and your wife were messing around, right? Right? I mean, okay, I get that. I can understand why you don’t tell [Robinson]. Not to mention the fact that maybe he’d want to kill you, but I get it. That’s not where it stops though. The police — the police are involved in this situation. This defendant knows that this is a big deal now. You know, he talks about the fact that, you know, [Robinson] was calling him and insinuating all of these things. Now, keep in mind, he’s talking about those calls. And what he doesn’t realize at the time, it’s nice for him to not know — he doesn’t realize those calls are being recorded by the police, but he knows what [Robinson] is insinuating.
And what does [Appellant] do because he knows the importance of all this? He gets a lawyer. He gets an attorney. This isn’t some schlep who just went in and spoke with the police without the benefit of having someone there to protect your rights, no. He goes in with an attorney. Talks over the phone to the police. And what does he do, ladies and gentlemen? He doesn’t say listen, I didn’t want to tell [Robinson] because I didn’t want [the victim] to get jammed up. I didn’t want [Robinson] mad at me but we messed around. We messed around. Shouldn’t have done it, perhaps too much drinking, shouldn’t have done it. Does [Appellant] say that to the police? Does he tell the police that? No. What does he do when he has the time to come clean? He lies. He lies.
Thereafter, defense counsel “moved for a mistrial, objecting, in relevant part, that the prosecutor ‘hammered on’ the fact that he retained an attorney when he talked to Detective Langley and created an improper inference of his guilt from that fact in the minds of the jury.” The trial judge denied the motion but did give a curative instruction, telling the jurors, inter alia, “I think any reasonable person, innocent or not, accused of an offense, has the right, and you would expect them to use an attorney during that proceeding.”
According to the Supreme Court of Pennsylvania, that curative instruction played a part in this clear error by the prosecutor being harmless. According to the court,
the Commonwealth’s improper reference in its closing argument to Appellant’s retention of an attorney during the police investigation of this matter was slight, given that, after the inappropriate remarks, Appellant immediately objected, and the trial court gave a prompt curative instruction to the jury which emphasized that there was nothing untoward about Appellant’s use of counsel because it was his right to do so, and that, in fact, the law preferred that counsel be used when statements are given to the police….Most importantly, the trial judge also explicitly instructed the jury that they were to draw no adverse inference from Appellant’s use of counsel…We presume the jury followed the trial judge’s directive.
I don’t buy it. There are some bells that can’t be unrung, and the prosecutor’s commentary was so inappropriate that I think the error was prejudicial and required a new trial.