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Cumulative Error Used to Vacate: Starks

Prosecutor’s closing statement and cumulative error used to vacate and remand in the Tenth Circuit in Starks case.

Prosecutor’s closing statement and cumulative error used to vacate and remand in the Tenth Circuit in Starks case.

Trial and Conviction

Starks was convicted for possession with intent to distribute fentanyl and heroin. In an unusual manner, the district court decided it would give the bulk its jury instructions before the evidence was heard. At the conclusion of trial, two days later, the court did not reiterate the instructions.

One of the instructions provided to the jury prior to the start of trial was that the presumption of innocence remains with Starks throughout the trial. This instruction was not repeated to the jury prior to deliberations. Importantly, in its closing argument, the government told the jury that Starks’ presumption of innocence has changed based on the weight of credible evidence presented at trial. Starks’ attorney did not object to the statement. Further, in the government’s rebuttal closing, it vouched for the credibility of its witnesses. The jury subsequently convicted Starks.

Appeal and Cumulative Error

Starks raised several claims for appellate review. However, the Tenth Circuit determined Starks was deprived of a fair trial for the following reasons:

  • The cumulative effects of the government’s presumption-of-innocence advisement
  • The court’s admission of expert testimony regarding typical patterns and practices of drug traffickers
  • The prosecution’s vouching for witness testimony

Because Starks did not object to the prosecutor’s presumption-of-innocence advisement, the Tenth Circuit reviewed for plain error. The government readily conceded the statement was clear and obvious error. However, the government maintained that Starks’ substantial rights were not violated. The Tenth Circuit disagreed.

The prejudicial effects of the presumption-of-innocence advisement alone may not have been sufficient to warrant reversal. Yet, the Tenth Circuit found cumulative error affected Starks’ substantial rights. A new trial was required.

Jeremy's Takeaway

A lot went wrong with this trial. So much so that the Tenth Circuit found the number of errors so pervasive that it deprived Starks of a fair trial requiring vacatur of his conviction. The court and counsel’s failure to object to the impermissible statements made by the prosecution during closing argument was indefensible.

Of course, closing arguments are not evidence, but they are typically the last thing the jury hears before it deliberates. Thus, it is of utmost importance that closing statements do not run afoul of what is allowed. 

If you believe you received an unfair trial due to improper statements or other fundamental and cumulative error, please reach out to me [email protected] to discuss your case.


If anything here applies to you, contact us today.

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