Prosecutors Lose Drug Conviction After Appeals Court Reminds Them They Can’t Ignore The Presumption Of Innocence

There are several things prosecutors can't do when handling criminal trials. They still do them, of course. They suborn perjury. They deny defendants access to exculpatory evidence. They present junk science as actual science. And, every so often, they ignore the presumption of evidence that's supposed to be the foundation of the American justice system.

A criminal case [PDF] (mis)handled by the Tenth Circuit Court of Appeals has just cost federal prosecutors their drug conviction. It starts, as so many drug cases do, with a pretextual traffic stop. Troopers from the Kansas Highway Patrol stopped two vehicles, claiming one was following the other too closely. That explains one stop. The other was predicated on a supposed license plate violation - the obscuring of the state of registration by a license plate bracket.

Both cars were rentals. One of the troopers accessed Kansas traffic cam recordings and noticed both vehicles had traveled together on their way into the state a few days earlier. Suspecting a drug run, troopers used these pretexts to stop both cars. In one car, officers found suitcases containing fentanyl and heroin.

In the other - searched after the trooper claimed to smell the odor of burnt marijuana - no drugs were discovered, not even the weed the trooper claimed to smell. Instead, troopers found syringes, a vacuum sealer, and plastic bags.

This resulted in drug conspiracy charges for Devonte Starks. One of the people in the other car (the one actually containing drugs) chose to testify against Starks. The other two people in the cars stopped that day are still apparently on the run from the law. Starks challenged his conviction, claiming prosecutors violated his rights to a fair trial when presenting their closing statement to the jury.

The Appeals Court notes the trial court handled things weirdly, presenting a form of jury instructions (including the key presumption of innocence") prior to the presentation of evidence.

Notably, however, as a consequence of the court's unconventional approach regarding the timing of the delivery of its oral instructions, the jury heard the court's oral instructions concerning most of the governing law only once, and approximately two days before they began deliberations. In particular, the jury did not hear again-at the close of the evidence-the court's oral instructions regarding the government's beyond-a-reasonable-doubt burden of proof (i.e., Instrs. 5 and 7) nor the court's instruction concerning the presumption of innocence that the Constitution afforded Mr. Starks (i.e., Instr. 6)

Whether that pre-advice led prosecutors to believe they did not need to remind jurors of the presumption of innocence during closing statements is unknown.

What is known is that prosecutors not only decided not to deliver the standard (and required) reminder of the presumption of evidence following their presentation of evidence, but actually decided to tell jurors this presumption no longer existed. (Emphasis in the original.)

Now, on Monday, if you'll recall, you were instructed that this defendant was presumed innocent. That he was clothed in the presumption of innocence. And that was absolutely true Monday. But here we are[, on] Wednesday. Ladies and gentlemen, I submit to you that based upon the evidence and based upon your common sense, that that is no longer true. That as the defendant sits before you today, that that presumption has been changed based upon [the] substantial weight of credible evidence. And as you see him, the naked truth about him, this man, based on this evidence, is a drug dealer.

The court had no problem with this statement to the jury, which attempted to portray the presumption of innocence as something that ends once prosecutors present their evidence. Neither did the defendant... or at least his lawyer didn't. The government also claimed the defendant testifying against Starks was somehow bound" to tell the truth by her plea agreement as a cooperating witness and that this agreement meant she was apparently incapable of lying. The court did find this a bit too much, sustained Starks' objection, and ordered the jury to disregard the prosecutor's statement about the witness.

But it let the other statement stand. The jury returned with a guilty verdict. Starks appealed, asserting the government had committed no less than five plain" errors when handling his case. The appeals court says it only needs three to vacate his conviction.

We determine that the cumulative effects of three errors that Mr. Starks alleges are enough to warrant reversal of his convictions: specifically, (1) the unpreserved error arising from the government's presumption-of-innocence advisement, (2) the preserved error concerning the court's admission of the expert testimony of Troopers Goheen and Birney regarding typical patterns and practices of drug traffickers, and (3) the unpreserved error relating to the prosecution's vouching for Ms. Avery's credibility.

Making things worse is the fact that the government portrayed its evidence as airtight - something no juror could possibly see as anything but supporting a conviction on drug conspiracy charges. The Appeals Court says the government overstated the soundness of evidence and its last statements to jurors - the statement where it pretended the presumption of innocence no longer existed - allowed it to obtain an unearned win.

There was a dearth of trial evidence that Mr. Starks possessed the narcotics in the Toyota-either actually or constructively-on September 17. Indeed, the government itself concedes that there was no direct evidence-be it forensic evidence such as DNA or fingerprints" or anything else-that connected Mr. Starks to the drugs in the Toyota. Moreover, even though Ms. Avery's testimony inculpated Mr. Starks in other respects, as the government further acknowledges, she did not tie [Mr. Starks] directly to the drugs in the Toyota." Indeed, Ms. Avery could not shed any light whatsoever on whether Mr. Starks possessed the narcotics in the vehicle that she was driving because, according to her testimony, she was surprised herself upon arrest to learn that there were narcotics in the vehicle. And Mr. Starks made no incriminating statements connecting him to the narcotics in the Toyota. Nor, as he points out, was there any surveillance evidence of Mr. Starks dealing drugs at any point."

All of that adds up to clear violations of Starks' right to a fair trial.

The right to be presumed innocent is especially important in a case like this one, where the evidence was circumstantial and not overwhelming. Under these circumstances, the presumption of innocence cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced." Taylor, 436 U.S. at 485. But Mr. Starks's jury was told that this presumption evaporated at the close of the evidence-before it began deliberating on his guilt and innocence.

That costs the government its conviction. The 66-page ruling also calls out the prosecutors for relying on statements made by troopers that made it clear they would consider nearly anyone driving in any particular fashion to be potential drug dealers. It also takes time to call out the government's attempt to portray a cooperating witness (one with hardly convincing testimony) as incapable of lying due to a plea agreement.

In the end, the government isn't left with much to work with. The Appeals Court says the case is weak. The original jury spent two days deliberating - hardly the indication of a prosecutorial slam dunk. And it did so after receiving faulty instructions and misleading statements about the government's key witness. Things aren't going to be nearly as easy the second time around.