Jury Argument: Ties goes to the prosecution

Wesson v. State (Unpublished Opinion): Bribery conviction affirmed. Wesson, the City of Palestine’s dual capacity tax assessor-collector/city water utility supervisor got $1,000 from a citizen in exchange for issuing him a $7,183.71 refund for “billing errors” on his water bill. Whether or not there was a billing error, the citizen shouldn’t have gotten the refund money because he owed $14,465.86 in back taxes to the assessor-collector’s office.

Jury argument: Wesson produced an old water bill on the eve of trial (it had to do with whether she had used part of the $1,000 to pay her own water bill). The prosecutor responded by asking the jury to consider why Wesson hadn’t produced the water bill sooner, and why she hadn’t produced any other documents. Wesson said the prosecutor’s argument was an end-around her Fifth Amendment privilege against self-incrimination.

It wasn’t. Granted, prosecutors can’t make a plea for the jury to consider a defendant’s failure to testify. But when documents are added to the mix, things aren’t as cut-and-dried. The court looks at the argument as a whole to see if the prosecutor “manifestly intended” such a plea, or (prosecutor’s intent aside) the jury would “necessarily and naturally” hear such a plea in the prosecutor’s words.

Under that standard, it appears that a tie goes to the prosecution – a “mixed” statement that could refer to the failure to testify or to the failure to produce documents does not “necessarily” refer to the failure to testify. That’s a bit of editorializing on my part, though. There was no mixed statement here. The Tyler court found that there was nothing in what the prosecution said that went to the failure to testify. The prosecutor’s statements were squarely directed to the documents. Hence there was no violation of the privilege against self incrimination.
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