Massachusetts Supreme Judicial Court Reverses Child Rape Conviction Because of Prosecutor’s Inappropriate Closing Argument

The Massachusetts Supreme Judicial Court today ruled that a prosecutor’s closing argument in a child rape case was so inappropriate that the defendant is entitled to a new trial.  The name of the case is Commonwealth v. Dirgo.

A Hampden County superior court jury convicted the defendant of four counts of aggravated rape of a child and two counts of indecent assault and battery on a child under the age of 14.  The defendant met the complainant when she was 12 years old.  Their families were friendly and socialized together.  The complainant alleged that she began babysitting for the defendant’s son and would sometimes sleep at his house.  Over time, the defendant supposedly touched her inappropriately as they sat together under a blanket.  By the time the complaint turned 13, she claimed the defendant was having sex with her.  At trial, the complainant testified she frequently had sex with the defendant in 2010 and 2011, had developed feelings for him, and wanted to be in a relationship with him.  She wrote love letters to the defendant but did not deliver them.  When her mother found the letters, she initially denied being in a relationship with the defendant and said the notes represented a “dream” of hers.  However, when confronted a second time, the complainant disclosed the alleged relationship.  When she testified at trial, the complainant said she was probably in love with the defendant and initially lied about their relationship to protect him.  She admitted that she sometimes escaped her reality by imagining alternate realities and said she was sometimes “delusional.”

The prosecutor made three separate mistakes during her closing argument.  First, she argued that the jury should believe the complainant because she was willing to testify in court.  The prosecutor repeatedly suggested it was not easy for the complaint to testify and there was nothing for her to gain by recounting the embarrassing story of her sexual relationship with the defendant.  Such argument was clearly improper, and the Supreme Judicial Court has recognized the impropriety several times in past cases.  It was particularly prejudicial in a case like this, where there was no physical evidence to corroborate the complainant’s story.  The prosecutor’s second error was arguing that the complainant’s knowledge of sexually-explicit language was as a result of the sexual abuse she experienced at the hands of the defendant.  The problem with this argument was there was no evidence in the record that the 15-year-old complainant would not have learned those terms from other sources.  Further, the prosecutor knew (or should have known) that the complainant had previously accused another person of sexually abusing her.  Therefore, it was improper for the prosecutor to argue the complainant’s use of sexual terminology was a result of the defendant’s conduct.  Third, the prosecutor improperly argued that but for evidentiary restrictions, she would have be able to “parade witness after witness” into court to support the complainant’s accusations.

After acknowledging all three of the prosecutor’s erroneous arguments, the Supreme Judicial Court determined they created a substantial risk of a miscarriage of justice.  The Court said the prosecutor’s improper statements went directly to the jury’s assessment of the complainant’s credibility, which was really the only issue in the case.  Because it was not a strong case, the Court had “serious doubt” that the verdict might have been different if the prosecutor had not made inappropriate arguments to the jury.  Accordingly, the Court reversed the defendant’s convictions and remanded the case to the trial court for a new trial.

The facts of this case are representative of many child rape cases.  There are often no independent witnesses and no physical evidence supporting the complainant’s story.  Therefore, the prosecutor is stuck trying to convince a jury to return a guilty verdict with nothing other than the testimony of the complainant who, like in this case, may have serious credibility issues.