Improper Golden Rule Argument

An Illustrative Case

Braithwaite v. State, 225 Ga. 884, 572 S.E.2d 612 (Ga. Sup. Ct. 2002), illustrates what an impermissible golden rule argument looks like. The following discussion omits footnotes and page citations.

Braithwaite was charged along with four accomplices with murdering two men and one woman. The evidence, taken in the light most favorable to the government, was as follows: Braithwaite and each accomplice agreed that together they would rob Chauncy Fleming and kill him with his own gun. They further agreed that each of them would shoot Fleming so that they would all be culpable and, therefore, less likely to incriminate one another. They went to Fleming’s apartment, where they smoked marijuana and watched television. Braithwaite found Fleming’s gun. Braithwaite gave a signal, and the five men subdued Fleming and the apartment’s two other occupants, Eddie McMillian and Nekeba Turner, who were sleeping in another room. Braithwaite killed Turner by shooting her in the head. Some of the accomplices took turns shooting and killing Fleming and McMillian.

Braithwaite was not an easy man to bring to justice. Approximately 20 months after the killings, Braithwaite’s wife informed police that Braithwaite had told her about the murders while holding her hostage. Braithwaite was arrested in New York several months later. He gave police a false name, refused to be fingerprinted, and gnawed on his fingertips. He was released in New York and re-arrested in North Carolina. The North Carolina police were only able to fingerprint him by obtaining a court order that allowed them first to sedate Braithwaite. Thereafter, he was extradited to Georgia to stand trial for these crimes. A jury convicted him.

The Golden Rule Argument

The Fulton County assistant district attorney began his closing argument as follows:

Two 18-year-old kids, sleeping in their house, never done anything wrong, not bothering anybody, engaged to be married, recent graduates from high school, both working, promising careers, maybe college.

What must it have been like to be in that bedroom, minding your own business when five men come in there, order you get down face first? Do you scream? Well, they couldn’t do that because they’d stuffed socks in their mouth. Do you fight back? These men have guns.

What must it be like laying there next to the man you love, your face covered up so you can’t see but you can hear everything? What must it be like when that first shot was fired into Eddie Fleming’s [sic] back and she’s laying there right next to him? And he can still talk. He can still move his head and she has to sit there and listen. And then they wait.

And what must it be like while the men are deciding who the next shot is going to be fired from? She’s laying there waiting. The blood is pouring out of Eddie’s back, who’s right next to her. The men decide. A second shot is fired—she’s inches away from it—into the head of Eddie McMillian.

What must it have been like for Eddie McMillian as he lay paralyzed? And then what was it like when Nekeba Turner as she lay there waiting for her turn to die?

. . .

What was it like for Chauncey Fleming as he lay there all tied up listening to his friends being killed knowing his turn is coming? And one last piece of worthless metal takes Chauncey’s life. I mean the last images anybody has of him is laying there tied up at the ankles and the arms and around the head.

And what must it be like to be Eddie McMillian’s mother and find those bodies? . . .

The Court’s Analysis: The Majority

A majority of the Georgia Supreme Court had this to say about the argument:

A “golden rule” argument is one that, regardless of the nomenclature used, asks the jurors to place themselves in a victim’s position. We have repeatedly held that a golden rule argument is improper, and we conclude that the State violated this prohibition in its closing argument.

But the majority concluded that defense counsel was not ineffective for failing to object to the argument:

The next question is whether Braithwaite’s trial counsel was deficient in not objecting to this improper argument. As trial counsel testified at the motion for new trial hearing, he recognized the impropriety of the State’s argument, but decided that objecting and drawing attention to the argument would be worse for his client than ignoring it and hoping the jury would too. With the benefit of hindsight, one can always argue that trial counsel’s failure to object was something that no reasonable trial lawyer would do. Our task, however, is to determine whether, in the throes of closing argument, no reasonable attorney, listening to the inflection of the speaker’s voice and judging the jurors’ reactions, would choose to remain silent instead of objecting and calling attention to the improper argument. Here, Braithwaite’s attorney reasonably chose silence, and we will not use hindsight to second-guess that decision on appeal.

Because the dissent takes issue with our assessment of the reasonableness of the trial attorney’s strategic decision, we also will consider the prejudice prong of Braithwaite’s ineffective assistance of counsel claim: whether Braithwaite has shown that, but for counsel’s failure to object to the State’s improper golden rule argument, there was a reasonable probability that Braithwaite would not have been convicted. Braithwaite’s principal defense was that he was not present, but the evidence of his presence at the crime scene was overwhelming. Furthermore, defense counsel, whose closing argument followed the State’s argument, acknowledged the tragedy that had occurred and the heinousness of the crimes, but refocused the jury’s attention on the specific evidence presented. Therefore, we conclude that Braithwaite has failed to demonstrate that the failure to object prejudiced his defense because trial counsel sought to mitigate the prejudice arising from the argument and the evidence against Braithwaite was overwhelming.

The Concurring Opinion and an Approach to the Golden Rule Prohibition

A concurring judge opined that the court’s golden rule opinions have not been as clear as they might have been as to what is allowed and what is prohibited.

While our appellate courts have maintained that “golden rule” arguments are improper, we have provided very little guidance as to what exactly constitutes a prohibited “golden rule” argument. As noted, we have recognized that a “golden rule” argument occurs when jurors are invited “to place themselves in the victim’s place in regard to the crimes” at issue in a trial. Yet our courts have issued conflicting rulings on the question of when this occurs. For example, we have held that the “golden rule” is violated where the State urges jurors to: “ask yourself [to imagine that] you are nine months pregnant and a . . . man comes in the room, puts a gold gun to your head and says lay down, I’m going to tie you up. . . .” We have also found a violation of the golden rule occurs where jurors are simply asked what they would have done were they in the same situation as the victim of an aggravated assault.

On the other hand, though, our courts have refused to find a violation of the “golden rule” in what might appear to be obvious cases. For example, in a prosecution for child molestation in which the child victim testified, the State urged the jury during closing arguments to:

“think about it, how would you like to walk over here, walk up these stairs and sit in this chair and have this microphone in your face and talk to twelve grownups, twelve people you’ve never met before, about the last time you had sex. . . . Is that an easy thing to do? Is that something that you would want to do? . . . Look at it from the children’s eyes. The right thing to do? It ruins their lives to tell . . . to live through it but look what happens to them when they tell about it. Nobody believes them.”

Even though this argument plainly asked jurors to place themselves in the victim’s shoes, our Court of Appeals, in a full court opinion, unanimously agreed that this argument did not “fit neatly within the category of [the] so- called ‘golden rule’ arguments.” Similarly, this Court has very recently held it was not improper during closing arguments for the State to urge the jury to “be the voice of (the victim).” Despite the “golden rule’s” prohibition against “importuning the jury to place itself in the position of the victim for any purpose,” we unanimously held in that case that the argument “was not an improper inflammation of the juror’s [sic] emotions.” Additionally, this Court has also held that the State does not err by urging the jury during closing arguments to “return one for [the victim].”

The mixed signals sent by this conflicting precedent are compounded by other rulings that accord prosecutors extraordinary leeway in fashioning their closing arguments. Generally speaking, Georgia’s appellate courts have permitted the State wide latitude during closing arguments so that it can “[sum] up its case graphically and forcefully.” During closing argument, the State is appropriately permitted to sympathetically portray the victims of a crime. Moreover, prosecutors can go to extreme lengths when portraying criminal defendants in the most negative light imaginable. We have allowed the State during closing argument to compare a defendant’s actions to the Gestapo’s crimes against European Jews during World War II; to compare a defendant to serial killers such as Charles Manson and Jack the Ripper; to compare a defendant to the Viet Cong and say that his return to society would be a greater danger than the threat of communism; and to refer to a defendant as a brute, a beast, an animal and a mad dog who does not deserve to live. One noted commentator has not hesitated to characterize these rulings as permitting arguments that come very close to impinging upon a criminal defendant’s fundamental right to a fair trial. Yet, as explained above, we purport to limit what a prosecutor may say during closing argument with the “golden rule’s” prohibition against “importuning the jury to place itself in the position of the victim for any purpose.”

The concurring judge summarized an approach to golden rule issues:

To my mind, a “golden rule” argument is impermissible because it asks jurors to abandon their objectivity and neutrality, put themselves in the shoes of the injured party, and then reach a verdict based upon what they imagine the victim’s subjective considerations might be if he or she were on the jury. It seems to me that in order to be impermissible, a “golden rule” argument must hypothetically ask the jurors to consider what verdict they would want delivered if they or a member of their family were the injured party or victim of a crime.

Accordingly, I do not believe that a “golden rule” argument is improper merely because it invokes vivid imagery of what a victim experienced during the commission of a crime or crimes. So long as such images may be drawn from the evidence introduced at trial, they may be invoked during closing arguments to the jury. To be impermissible, a “golden rule” argument must ask jurors—either directly or by implication—to perform their duties and deliberations as if they or someone they care for were the victim or injured party. As such, the danger presented by a “golden rule” argument is its attempt to give voice to a victim’s desire (imaginary or otherwise) for retribution, revenge or vengeance. Jurors, however, should render their verdict based upon their consideration of facts submitted to them, the issues framed by the pleadings, and the legal principles at stake, without regard for vigilantism.

The concurring judge applies this approach to the facts:

The prosecutor’s argument in this case asked the jury seven times to imagine “what it must have been like” for the victims in this case as appellant and his cohorts invaded their residence, bound and gagged them, and systematically shot them to death. The prosecutor also asked the jury to imagine “what it must have been like” for the mother of one victim, who found the bodies. The images conjured by these statements were readily discernible from the evidence of record and did not seek—either directly or implicitly—to have the jurors step into the victims’ shoes and imagine what the victims’ subjective considerations might be if they were on the jury. Accordingly, I do not believe that these statements, standing alone, violated the “golden rule.”

However, the prosecutor also asked rhetorically (in reference to the invasion of two of the victims’ bedroom): “Do you scream? Well, they couldn’t do that because [the perpetrators had] stuffed socks in their mouths. Do you fight back? These men have guns.” With these statements—”Do you scream? Do you fight back?”—the prosecutor invited the jurors to imagine that they were the victims in this case and sought to have the jurors ask themselves what they would do in that situation. I believe this crossed the threshold of an impermissible “golden rule” argument by exhorting the jury to deliberate on the victim’s subjective considerations. It also implicitly sought to give the victims a voice on the jury as it carried out its duties. Therefore, had this issue not been waived at trial, I would conclude that this particular portion of the State’s closing argument violated the “golden rule.”

The concurring judge found the violation to be harmless error. In a footnote, the majority disagreed with the concurring judge’s application of the rule to the facts: “We find unpersuasive the distinction the concurrence draws between proper and improper arguments, and conclude, as does the dissent, that the entire portion of the closing argument focusing on the feelings of the victims and their families violated the prohibition against ‘golden rule’ arguments.”

The Dissent

A dissenting judge found the golden rule argument to be reversible error:

Although Georgia law is well established that use of a golden rule argument is clear error and despite the majority’s concession that an impermissible golden rule argument was made in this case, the majority concludes that trial counsel’s performance was not deficient for failing to object to this argument. Citing two cases that fail to support its position, the majority decides that because defense counsel deliberately “chose silence” as his response to the prosecution’s egregious argument, defense counsel’s performance cannot be deficient. According to the majority, such a decision, when deliberately made, becomes untouchable and any review of that decision is inappropriate “hindsight” and “second-guessing.”

I do not agree with the majority that error by trial counsel is unreviewable merely because the error was intentional. A deliberate decision by trial counsel can constitute deficient performance just as easily as an inadvertent lapse. Invoking the words “tactics” and “strategy” does not automatically immunize trial counsel against a claim that a tactical decision or strategic maneuver was an unreasonable one no competent attorney would have made under the same circumstances. “Tactics” and “strategy” provide no talismanic protection against an ineffective assistance of counsel claim. Nor can invoking the phrases “hindsight” and “second-guessing” justify an appellate court’s failure to perform its function as a reviewing court to determine whether the “tactical judgment of [trial counsel] was outside the wide range of reasonably effective assistance. . . .”

Applying the appropriate analysis to this case, trial counsel’s decision to remain silent in the face of the prosecutor’s prolonged and egregious golden rule argument was a decision no reasonable defense counsel would have made under the same circumstances. The Fulton County Assistant District Attorney deliberately used this prohibited argument as part of a strategy designed to undermine the fairness of Braithwaite’s trial by importuning the jury at length to review the evidence not from a dispassionate distance but from the subjective viewpoint of the crime victims and their families. . . .

The dissent disagreed with the majority that the evidence against Braithwaite was overwhelming:

What the majority’s synopsis of the evidence at trial fails to reflect, however, is that the “overwhelming” evidence adduced by the State at trial consisted only of testimony by two of the men involved in the murders, Ward and Davis, and testimony by Braithwaite’s estranged wife, who purportedly was told by Braithwaite of his involvement in the crimes during an argument between the couple over the wife’s love affair with witness Davis. Davis testified at trial that he had a sexual relationship with Braithwaite’s wife and the estranged wife testified that, although not divorced, she was no longer using Braithwaite’s name. Both Davis and Ward received favorable sentences in exchange for their testimony: Ward was sentenced to a total of 22 months (time served) for his involvement in the three murders; Davis, who admittedly participated in the planned robbery and murder of Fleming and personally shot Eddie McMillian in the back, was allowed to plead guilty to voluntary manslaughter and received a 25-year sentence.

While the credibility of these witnesses was for the jury, . . . and I fully concur with the majority that the evidence against Braithwaite was sufficient . . . , the evidence adduced at trial could not reasonably be considered to be “overwhelming.” There were no fingerprints, no blood splatters or other forensic evidence to connect Braithwaite to the crimes. No stolen goods were found in his possession; the murder weapon was recovered from another person. There was no testimony by a disinterested third party and no incriminating statements to police. Braithwaite’s conviction rested solely on details provided by an adulterous wife who could have obtained her information from her lover Davis, and the testimony of Davis and Ward, given in exchange for more lenient jail time. This evidence was sufficient to support the guilty verdicts but it was by no means “overwhelming.”

Lessons

There is a prohibition on making a golden rule argument. In a criminal case, the prohibition prevents a prosecutor from asking a jury to place itself in the position of a victim. But applying the rule to specific facts is not easy, as Braithwaite demonstrates. The majority and the dissent agreed that the prosecutor’s discussion of the victims all violated the golden rule, while the concurring opinion concluded that the prosecutor’s asking the jury to imagine (a) “what it must have been like” for the victims as Braithwaite and his cohorts invaded their residence, bound and gagged them, and systematically shot them to death and (b) “what it must have been like” for the mother of one victim, who found the bodies, violated the golden rule prohibition.

The concurring opinion is surely correct in opining that “[w]hile our appellate courts have maintained that ‘golden rule’ arguments are improper, we have provided very little guidance as to what exactly constitutes a prohibited ‘golden rule’ argument.” The question is whether anything is clearer for prosecutors, defense counsel, and trial judges after this case. There is good reason to fear that the answer is “no.”