71 L. Ed. 2d 480, 102 S. Ct. 1303 (1982).
Alerte contends that the prosecutors' closing arguments in conjunction with the failure of the trial court to give the requested instruction on the consequences of a verdict of not guilty by reason of insanity deprived him of a fair trial and due process of law. Petition at para. 12. To warrant relief on this ground, this court must find the prosecutors' remarks, viewed in isolation, were improper and that the improper remarks, viewed in context of the entire case, infected the trial with unfairness to such a degree that the outcome would likely be different if the remarks had not been made. United States v. Hernandez, 865 F.2d 925, 927-28 (7th Cir. 1989). In assessing the effect of the improper remarks on the trial, the factors to be considered are the nature and seriousness of the prosecutorial misconduct, whether the comments are invited by defense counsel, whether the trial court issued curative instructions, whether the defense was able to respond to the improper arguments, and the weight of the evidence against the defendant. United States v. Pirovolos, 844 F.2d 415, 426 (7th Cir. 1988) citing Darden v. Wainwright, 477 U.S. 168, 181-83, 91 L. Ed. 2d 144, 106 S. Ct. 2464 (1986).
Alerte's petition cites three improper prosecutorial remarks that were objected to by defense counsel. First, the characterizations of an acquittal by reason of insanity as allowing Alerte to "skate," "walk out . . . and scoff," "escape responsibility," and "a slap on the wrist and let him walk out" were misrepresentations of the law. The prosecutors were apprised of the law concerning involuntary confinement in a mental hospital for such acquittals by defense counsel's proposed jury instructions immediately preceding the closing arguments. R. 1115. Similarly improper was the remark by the rebuttal prosecutor that "there's one deterrent when you find him . . . guilty of murder . . . he will not get the opportunity to murder anybody else. That's the deterrent." These remarks are cause for reversal where they are an invitation to the jury to convict, even though it might believe the defendant to be insane, in order to keep the defendant off the streets and away from society. United States v. Jackson, 542 F.2d 403, 411 (7th Cir. 1976).
Finally, the third remark complained of by Alerte is the suggestion by the rebuttal prosecutor that the murder was motivated by homosexual jealousy. There was no evidence introduced at trial that Alerte was homosexual or that there was any sexual relationship between Alerte and the victim. This remark seems particularly egregious in light of the fact that immediately prior to closing arguments, the prosecutors were informed that the jury would be instructed that no motive was necessary to find Alerte guilty of murder. The prosecutor's purpose in implying a homosexual motive can only be construed as outside the record and intentionally inflammatory. See United States ex rel. Clark v. Fike, 538 F.2d 750, 760 (7th Cir. 1976).
There were other improper prosecutorial statements that were not objected to by defense counsel or are not raised in this petition. The prosecutor referred to the insanity defense as a "fraud" and mocked Alerte's psychiatrist. The rebuttal prosecutor made statements that Alerte's parents were equally guilty, that he (the prosecutor) cared about his own retarded uncle, that defense counsel took the case for money, and that a verdict of insanity would "cut [Alerte] loose." Alerte does not request -- and this court does not decide -- whether these remarks rose to the level of plain error. However, when analyzing the effect of the three improper remarks Alerte relies on, these additional comments must be considered in evaluating whether Alerte received a fair trial. Hernandez, 865 F.2d at 927.
Prosecutorial misconduct that does not directly violate a criminal defendant's constitutional rights may still deny him a fair trial if they are repeated or emphasized. Compare Jackson, 542 F.2d at 403 (new trial not required where prosecutor referred to item not in evidence and result of insanity plea in passing), with United States v. Vargas, 583 F.2d 380 (7th Cir. 1978) (new trial granted where prosecutor made repeated allegations unsupported by evidence and misstated the law). The prosecutors in this case made three statements overtly suggesting that an acquittal by reason of insanity would set a violent, irrational man free and that a verdict of guilty would not. In the context of a trial involving a brutal murder and significant testimony concerning Alerte's history of irrational violence, the prosecutors' repeated remarks were particularly prejudicial.
The prosecutors' arguments are the core of Alerte's petition. Improper statements concerning the result of a finding of insanity were not invited. The first two remarks came before defense counsel's closing argument. Objections to these improper comments were not sustained. In contrast, defense counsel was not allowed to effectively respond to these comments. An objection by the prosecution to defense counsel's attempt to address the issue was sustained. Had the prosecution's objection been overruled, the prosecutorial remarks may have had a less prejudicial impact. See People v. Myers, 35 Ill. 2d 311, 220 N.E.2d 297, 311 (1966). With respect to the rebuttal prosecutor's allegation that defense counsel's motive for taking the case was solely for money, it is noted that the invited response doctrine does not make an improper remark proper, but rather is weighed against the improper invitation when determining its effect. United States v. Young, 470 U.S. 1, 11-14, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985).
Prosecutorial misconduct that is promptly and vigorously corrected by the judge is not reversible error. United States v. Mazzone, 782 F.2d 757, 763 (7th Cir. 1986) (misconduct was not reversible error when several objections were sustained and judge told jury to disregard objectionable remarks). During Alerte's trial, however, none of the defense objections were sustained nor were the prosecutors' improper statements mitigated by a curative instruction. After defense counsel's first objection, the court merely responded, "Punishment is left up to me." Although admonitions to the jury will be presumed to be taken seriously, Mazzone, 782 F.2d at 764, the jury cannot reasonably be presumed to have understood this as an admonition when the prosecutor repeated the improper remark shortly thereafter. The judge's response likely confused the jury and did not mitigate the prejudicial impact of the prosecutor's remarks. In addition, when the rebuttal prosecutor argued that a verdict of murder would keep Alerte from murdering again, the court responded to defense counsel's objection by saying, "Jury heard the evidence." At best, this remark is ambiguous. It could easily have been construed by the jury to mean that they could consider the deterrent effect of a guilty verdict. A curative instruction to the jury at the close of arguments mitigates the effect of prosecutorial misconduct. Jackson, 542 F.2d at 411-12. None was given.
Even grossly improper statements by a prosecutor will not require a new trial when the evidence of guilt is overwhelming. Darden, 477 U.S. at 182. The burden is on Alerte to establish that "but for the prosecutorial misconduct the outcome of the trial would have been different." Shepard v. Lane, 818 F.2d 615, 622 (7th Cir. 1987). The state appellate court found that the jury heard "sufficient evidence to find that [Alerte] was sane." Alerte, 458 N.E.2d at 1112. However, adequate consideration was not given to the entire record. The prosecutors' remarks were particularly prejudicial because the defense relied heavily on the insanity issue and that issue was hotly contested. Alerte's insanity defense was not based on a temporary condition. Alerte was seen by numerous psychiatrists and psychologists since he was five years old, he spent time in several mental hospitals and he was prescribed medication to control his violent behavior. Both sides presented qualified expert witnesses to testify on the insanity issue. Evidence of sanity was far from overwhelming.
The jury heard a great deal of testimony about Alerte's history of violent and assaultive behavior. In their arguments, the prosecutors exploited the justified fears of the jurors by repeatedly arguing that a verdict of not guilty by reason of insanity would free a dangerous person and that the only way to prevent him from committing another brutal murder was a verdict of guilty. "The threat is always present that the jury's consideration of the evidence will be affected by their fear that a finding of insanity will result in a defendant being set free." Jackson, 542 F.2d at 412. The prosecutors deliberately and repeatedly exploited this fear. The trial judge did not intervene or give any curative instructions. Defense counsel was not permitted to respond to these inflammatory and prejudicial remarks or to have the jury instructed on the effects of a finding of insanity.
Under these circumstances, the prosecutors' improper comments likely affected the jury's decision. Alerte was denied a fair trial.
Alerte's petition for a writ of habeas corpus is granted. Execution of the writ is stayed on the condition that the State of Illinois grant petitioner a new trial within a reasonable time not to exceed 120 days.