Anthony v. Louisiana ( 2022 )

Cite as: 598 U. S. ____ (2022) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
WILLARD ANTHONY v. LOUISIANA
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
APPEAL OF LOUISIANA, FIFTH CIRCUIT
No. 21–993. Decided November 7, 2022
The petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, with whom JUSTICE JACKSON joins,
dissenting from the denial of certiorari.
Petitioner Willard Anthony was charged with several
counts related to sex trafficking. At trial, the State called
two witnesses who testified that they witnessed and expe-
rienced physical and sexual abuse by Anthony. Defense
counsel sought to impeach these witnesses, who had been
arrested but not charged with prostitution, by suggesting
they may have negotiated a deal in exchange for their tes-
timony. To rebut this suggestion, the State called as a wit-
ness the prosecutor who presented Anthony’s case to the
grand jury. The prosecutor’s testimony, however, went far
beyond that limited purpose. Spanning 70 transcript pages,
and over defense counsel’s repeated and vociferous objec-
tions and motions for mistrial, the grand jury prosecutor
expressed his belief that Anthony was guilty beyond a rea-
sonable doubt, referenced his own investigation and evi-
dence outside of the record, testified that he believed the
State’s two witnesses were credible, and bolstered his own
credibility by reiterating the sworn oath he took as a pros-
ecutor. Anthony was subsequently convicted and sentenced
to life without the possibility of parole.
The prosecutorial misconduct in this case is not only bla-
tant and egregious, but a clear due process violation. The
court below nonetheless held that admission of the prosecu-
tor’s testimony was harmless error. The court reached this
2 ANTHONY v. LOUISIANA
SOTOMAYOR, J., dissenting
holding after applying an incorrect harmless-error stand-
ard and disregarding compelling record evidence of preju-
dice. Because the court below clearly misapplied existing
law in a manner that denies fundamental justice, I would
summarily reverse.
I
Willard Anthony was indicted by a grand jury in Jeffer-
son Parish, Louisiana, on two counts of aggravated rape
and one count each of human trafficking, aggravated bat-
tery, second-degree battery, and possessing a firearm as a
felon. At trial, Anthony conceded his guilt to being a felon
in possession of a gun and to second-degree battery. He de-
nied, however, charges that he raped a woman known as
C. W., that he forced either C. W. or another woman known
as Lee to work as a prostitute, and that he ever attacked
C. W. with a gun. To carry its burden of proving the re-
maining counts of aggravated rape, human trafficking, ag-
gravated battery, and sexual battery, the State relied al-
most entirely on testimony from C. W. and Lee themselves.1
Defense counsel sought to impeach and discredit those
witnesses on cross-examination. Defense counsel pressed
Lee on the fact that she had been arrested for prostitution
and possession of cocaine, but that she had not been
charged. Counsel asked “[y]ou certainly expect the District
Attorney’s Office to help you with [those potential charges],
correct?” Tr. 53 (Dec. 10, 2016) (12/10 Tr.). Counsel also
suggested that Lee had a motivation to curry favor with the
prosecution, but Lee denied that she had made any deal
——————
1 The physical evidence in the record included C. W.’s vaginal swab,
which did not exclude Anthony’s profile; DNA evidence from Anthony’s
gun that did not exclude C. W.’s, Anthony’s, or a codefendant’s profile;
and cell phone records that confirmed that Anthony had posted pictures
of C. W. and Lee on the internet. This evidence was consistent with An-
thony’s testimony that he had consensual sex with C. W., that he posted
advertisements of C. W., Lee, and Grisby with their consent, and that
C. W. had handled his gun, which he left unattended.
Cite as: 598 U. S. ____ (2022) 3
SOTOMAYOR, J., dissenting
with the district attorney’s office in exchange for her testi-
mony.2
After Lee testified, the State called as a witness Assistant
District Attorney (ADA) Thomas Block, the prosecutor who
presented Anthony’s case to the grand jury, ostensibly to
rebut defense counsel’s inference that Lee had made an
agreement with the district attorney’s office in exchange for
her testimony. Instead, ADA Block began his testimony by
explaining grand jury procedures. He testified, over objec-
tion, that he had “an obligation not to present what [he] be-
lieve[d] to be perjure[d] testimony.” Id., at 95. ADA Block
elaborated: “[T]he only evidence that I present to a grand
jury would be evidence that would be legally admissible in
a court of law. I have a responsibility based upon my oath
that I have taken to be an Assistant District Attorney as
well as an officer of the Court and I take my job very seri-
ously.” Id., at 100.
ADA Block then confirmed that his office did not file
charges against Lee, but his testimony did not conclude
there. The State asked ADA Block if he was aware of the
information that the jury had already heard about Lee on
her cross-examination, referring to the claim that Lee had
worked as a prostitute and had been arrested for possessing
cocaine. ADA Block testified, over objection, that he was
aware of that information, as well as “police reports and . . .
interviews that the detectives had done” with Lee and with
another woman, Brittany Grisby, who was arrested along
with Lee and C. W., and who did not testify at the trial. Id.,
at 104. Asked again why Lee or C. W. were not charged
after they had been arrested, ADA Block testified, again
——————
2 Later in the trial, after Assistant District Attorney (ADA) Thomas
Block testified, the government called C. W. as a witness. Defense coun-
sel similarly cross-examined C. W. on her prostitution history, her drug
and alcohol use during the events about which she testified, her prior
felony convictions, and her recent arrest on an outstanding Florida war-
rant.
4 ANTHONY v. LOUISIANA
SOTOMAYOR, J., dissenting
over objection,3 to the legal conclusion that “[Lee] has an
affirmative defense to the charges of prostitution . . . insofar
as she was a victim of human trafficking as a result of his
actions, Willard Anthony’s actions.” Id., at 105. Defense
counsel moved for a mistrial, which the trial court denied.
The State then focused ADA Block on the drug charges
and battery charges that were initially part of Lee’s arrest.
ADA Block acknowledged that Lee and Grisby both hit
C. W., but opined, over repeated objections and a further
motion for mistrial,4 that he had met and interviewed
C. W., and concluded that Lee and Grisby hit C. W. specifi-
cally “because they were told to do so by Willard Anthony
and they recognized that if they did not comply with his de-
mands to beat [C. W.] after he had already beaten her, that
they themselves would have sustained beatings.” Id., at
110. Regarding cocaine found in a motel room occupied by
Lee, Grisby, and C. W. when they were all arrested, ADA
Block explained to the jury that he “knew based upon the
investigation that the defendants . . . were using drugs as a
means to get the three ladies or the three female victims to
commit the crimes for them as it relates to the human traf-
ficking. That was just one of the things that they used to
gain control over the females.” Id., at 115.
ADA Block confirmed that he had not made a deal with
Lee, and reiterated that “as an officer of the Court and a
representative of the people of Jefferson Parish and the
——————
3 Here, defense counsel objected on the ground that ADA Block was
“giving an opinion as to the credibility of Ms. Lee.” 12/10 Tr. 106. Coun-
sel explained: “[ADA Block] can’t testify personally, his personal opinion
based on this. You can’t do that. I believe that’s reversible error.” Id.,
at 107. The trial court overruled the objection.
4 In one objection, defense counsel explained: “[ADA Block] can’t sit
here and comment on a witness’ credibility before she’s testified at this
point. You can’t, you can’t support a witness like this. It’s up to the jury
to make that decision, not this man.” Id., at 112. The trial court over-
ruled the objection. Defense counsel again moved for a mistrial, which
the trial court also denied.
Cite as: 598 U. S. ____ (2022) 5
SOTOMAYOR, J., dissenting
State of Louisiana,” he had an obligation to decline charges
that cannot be proved beyond a reasonable doubt. Ibid.
When asked if ADA Block had tried to curry favor with Lee,
he said no, and testified that Lee was “a victim.” Id., at 117.
ADA Block reiterated that Lee did not receive a benefit
from testifying, telling the jury that “[u]ltimately, she was
going to have to come before you . . . and tell her story and
then it would be up to you to determine whether or not you
believed her.” Ibid. Defense counsel raised an “ongoing ob-
jection.” Ibid.
On cross-examination, defense counsel sought to question
ADA Block about the limited and nonadversarial nature of
grand jury proceedings, but the trial court sustained the
State’s objections to any questions involving the grand jury.
At a bench conference, defense counsel argued that such
questioning was necessary because ADA Block had vouched
for the credibility of the State’s witnesses, but the trial
court disagreed, finding that ADA Block “testified as to
what he has done regarding the [grand jury] screening pro-
cess and the affirmative defenses available to these
women.” Id., at 125. Defense counsel again moved for a
mistrial, which the trial court again denied.
On redirect, ADA Block reiterated that he did not bring
charges against Lee or nontestifying witness Grisby be-
cause in his view “[t]hey were victims. They were witnesses
to the abuse of [C. W.].” Id., at 155. ADA Block testified
that there was consistency between what Lee and Grisby
had told him. Defense counsel objected once more, this time
because Grisby had not testified at trial; the trial court once
again overruled the objection. ADA Block continued: “I be-
lieve that [Lee and Grisby] have an affirmative defense. I
believe that they were victims of Willard Anthony . . . on a
human trafficking, sex trafficking enterprise. I believe that
they were witnesses to the crimes that this defendant be-
fore you stands accused of.” Id., at 156. Seemingly address-
ing the jury directly, ADA Block testified: “I would never in
6 ANTHONY v. LOUISIANA
SOTOMAYOR, J., dissenting
good conscience bring charges against them for the reasons
I have stated to you, ladies and gentlemen, today.” Ibid.
When asked by the State whether ADA Block would prose-
cute Lee or Grisby, ADA Block answered “I would not do
that . . . for the reasons I’ve stated. They are victims of sex
trafficking.” Id., at 158. ADA Block emphasized: “I have a
responsibility and obligation as an officer of the Court when
I was sworn in in 1993 as a lawyer and then sworn in as a
prosecutor to prosecute in good faith pursuant to the laws
in the State of Louisiana and take only those cases that we
can prove beyond a reasonable doubt.” Ibid.
The State, in its closing argument, reminded the jury of
ADA Block’s testimony, asking (over defense counsel’s ob-
jection, which the trial court overruled): “You understand
why the charges were refused against Ms. Grisby and Ms.
Lee? No back room deals. . . . There are no deals here.” Tr.
256–258 (Dec. 11, 2016). The jury convicted Anthony on all
counts, and the judge sentenced him to an aggregate life
without the possibility of parole sentence.
II
The Court of Appeal of Louisiana, Fifth Circuit, vacated
Anthony’s convictions on direct appeal. The court recog-
nized that “a prosecutor may assume the dual role of wit-
ness and advocate only under extraordinary circum-
stances.” 2017–372, p. 15 (La. App. 5 Cir. 2/20/19), 266 So.
3d 415, 426. “The danger,” the court observed, “is that the
jury might give inordinate weight to the prosecutor’s testi-
mony.” Ibid.
Applying those principles here, the court concluded that
“Mr. Block’s testimony exceeded the scope permissible for a
fair and impartial trial” in violation of Anthony’s constitu-
tional rights to due process and a fair trial. Id., at 426–427.
That was so, the court reasoned, because ADA Block
“vouched for the credibility of the State witnesses,” sug-
gested that he “was aware of further evidence that was not
Cite as: 598 U. S. ____ (2022) 7
SOTOMAYOR, J., dissenting
presented to the jury,” and “improperly commented on [An-
thony’s] guilt.” Id., at 427–428. ADA Block did so “while
using the prestige and dignity of his office to bolster the
State’s case.” Id., at 427. The court accordingly found that
ADA Block’s testimony amounted to structural error be-
cause the testimony violated Anthony’s right to a “presump-
tion of innocence.” Id., at 430.
In a per curiam opinion, the Louisiana Supreme Court
vacated and remanded the Court of Appeal’s decision on the
ground that the lower court should have applied harmless-
error analysis, not the structural-error doctrine. On re-
mand, Judge Liljeberg of the Court of Appeal, who had au-
thored the prior opinion, recused himself on the ground that
“the facts and merits of this particular case were made a
primary issue during [his] campaign for the Louisiana Su-
preme Court.” App. to Pet. for Cert. 33a.5
In a split decision, the new Court of Appeal panel af-
firmed the conviction. All three judges agreed that An-
thony’s convictions for possession of a firearm and second-
degree battery were valid. The majority upheld Anthony’s
other convictions, finding ADA Block’s testimony to be
harmless error. The majority reasoned that “the record
shows that there was sufficient evidence to support defend-
ant’s convictions.” 2017–372, p. 12 (La. App. 5 Cir.
12/30/20), 309 So. 3d 912, 923. In light of the “volume and
strength of evidence introduced at trial in support of de-
fendant’s convictions,” the majority concluded that ADA
Block’s testimony was harmless error. Id., at 924.
——————
5 For instance, one TV advertisement against Judge Liljeberg charged
that Judge Liljeberg had made a “ ‘reckless decision’ ” favoring “ ‘a mon-
ster’ ” (Anthony): “ ‘It didn’t matter the victim was beaten, strangled and
forced into a prostitution ring . . . . Liljeberg still sided with the criminal.
It was wrong.’ ” J. Simerman, Ad War Heats Up Louisiana Supreme
Court Race With a Week to Go, NOLA.com (Nov. 9, 2019),
https://www.nola.com/news/politics/elections/article_fb7e524e-0323-11ea-
a4c9-1f07984fbd56.html.
8 ANTHONY v. LOUISIANA
SOTOMAYOR, J., dissenting
Judge Wicker dissented. She began by cataloging the er-
rors the trial court committed by permitting ADA Block’s
wide-ranging testimony, explaining that ADA Block
“usurped the exclusive province of the jury to weigh the ev-
idence, including the credibility of all witnesses”; “testified
concerning evidence the State received from Brittany
Grisby, a witness who did not testify at trial”; “bolstered the
credibility of State’s witnesses”; and “gave an opinion as to
the ultimate issue of fact: the Defendant’s guilt beyond a
reasonable doubt.” Id., at 931. Judge Wicker concluded
that ADA Block’s testimony was “much more egregious”
than cases in which a prosecutor made impermissible state-
ments during closing argument, because ADA Block “was a
sworn witness,” presenting evidence “to be considered by
the jury in its deliberations.” Id., at 944. Applying the
proper harmless-error standard, Judge Wicker explained,
there was a reasonable possibility the evidence complained
of might have contributed to the conviction. Id., at 945.
The Supreme Court of Louisiana declined a writ of certi-
orari, with Justice Hughes noting his dissent for the rea-
sons stated by Judge Wicker. 2021–00176 (La. 10/12/21),
325 So. 3d 1067.
III
A
This Court has explained that prosecutorial misconduct
may rise to a due process violation in different circum-
stances, including when a prosecutor “vouche[s] for the
credibility of witnesses,” United States v. Robinson, 485
U. S. 25, 33, n. 5 (1988), “express[es] his personal opinion
concerning the guilt of the accused,” United States v. Young,
470 U. S. 1, 18 (1985), or “suggest[s] by his questions that
statements had been made to him personally out of court,”
Berger v. United States, 295 U. S. 78, 84 (1935). The ulti-
mate question has been whether a prosecutor’s conduct “so
infected the trial with unfairness as to make the resulting
Cite as: 598 U. S. ____ (2022) 9
SOTOMAYOR, J., dissenting
conviction a denial of due process.” Donnelly v. DeChristo-
foro, 416 U. S. 637, 643 (1974).
The Court in Young identified at least “two dangers” to
help determine whether misconduct rises to the level of a
due process violation. 470 U. S., at 18. First, a prosecutor
may convey to the jury the impression that the prosecutor
is aware of information, unknown to the jury, that suggests
the defendant’s guilt. Ibid. Second, the prosecutor’s opin-
ion may “carr[y] with it the imprimatur of the Government
and may induce the jury to trust the Government’s judg-
ment rather than its own view of the evidence.” Id., at 18–
19. When these dangers arise, they implicate due process
because they “jeopardize the defendant’s right to be tried
solely on the basis of the evidence presented to the jury.”
Id., at 18.
This case involves all three examples of misconduct pre-
sent in prior cases and presents both dangers discussed in
Young. The Court of Appeal therefore correctly concluded,
in its first decision, that ADA Block’s testimony constituted
a violation of Anthony’s due process rights.6 ADA Block
vouched for C. W.’s and Lee’s credibility, opining that they
were victims of Anthony’s crimes and imploring the jury
that Lee “deserves respect.” 12/10 Tr. 117. Most explicitly,
ADA Block testified that C. W.’s and Lee’s “statements were
corroborated as to [Anthony’s] actions,” based upon his view
of “the totality of the circumstances.” Id., at 140.
ADA Block also repeatedly testified that he believed An-
thony was guilty. He testified that he did not bring charges
against Lee, C. W., or Grisby because he believed that they
were victims of Anthony’s sex trafficking. See id., at 104–
105 (“Based upon the actions of Willard Anthony,” Lee had
“an affirmative defense” because “she was a victim of hu-
man trafficking as a result of . . . Anthony’s actions”). ADA
——————
6 The Court need not, and does not, decide whether ADA Block’s testi-
mony constituted structural error.
10 ANTHONY v. LOUISIANA
SOTOMAYOR, J., dissenting
Block further communicated his belief in Anthony’s guilt by
testifying that he had a responsibility to “take only those
cases that we can prove beyond a reasonable doubt,” unmis-
takably signaling his view that Anthony was guilty beyond
a reasonable doubt. Id., at 158. ADA Block directly testi-
fied: “I know that Willard Anthony assaulted [C. W.] with a
handgun; threatened to kill her; beat her; strangled her;
choked her to the point of unconsciousness.” Id., at 141.
ADA Block did not merely suggest that he knew of evi-
dence that was not before the jury, he said so. ADA Block
testified that in deciding to bring charges against Anthony,
he had reviewed extra record police reports and interviews
with Grisby, a witness who did not testify. He further tes-
tified that Grisby’s out-of-trial interview corroborated the
accounts of C. W. and Lee, the State’s key witnesses. ADA
Block’s testimony thus informed the jury of outside evi-
dence that bolstered the credibility of the State’s witnesses.
ADA Block also testified that he had personal knowledge,
outside of the evidence admitted at trial, that Anthony
“us[ed] drugs as a means” to lure women into prostitution.
Id., at 115.
ADA Block made these comments while also invoking the
imprimatur of his office. Several times he remarked on his
“responsibility and obligation” as an officer of the court, id.,
at 158, referencing the oath he took to become an assistant
district attorney, id., at 100. More disturbingly, he did so
as a sworn witness. In the context of closing arguments,
where the prosecutor is clearly speaking as an advocate,
courts give prosecutors some leeway to comment on the ev-
idence. Even in that context, however, “it is the height of
summation misconduct for a prosecutor to argue to the jury
his personal opinion as to a defendant’s guilt.” Bellamy v.
New York, 914 F. 3d 727, 763 (CA2 2019); see also Robin-
son, 485 U. S., at 33, n. 5. This context is more serious.
ADA Block appeared before the jury as a sworn witness,
presenting evidence that could be considered in the jury’s
Cite as: 598 U. S. ____ (2022) 11
SOTOMAYOR, J., dissenting
deliberations. In that capacity, while underscoring his ob-
ligation as a prosecutor, ADA Block told the jury that he
personally believed in the credibility of the State’s wit-
nesses, that Anthony was guilty, and that other evidence
outside of the record confirmed Anthony’s guilt.
B
Finding that ADA Block’s testimony rose to the level of a
due process violation does not end the matter, because con-
stitutional errors may nevertheless be harmless. In as-
sessing whether this error was harmless, however, the
Court of Appeal of Louisiana applied a standard that is con-
trary to settled precedent. The majority below found the
error harmless because “[t]he evidence at trial supports de-
fendant’s convictions, even excluding Mr. Block’s testi-
mony.” 309 So. 3d, at 922. At no point did the majority
consider the specific effect of ADA Block’s testimony on the
jury’s verdict, except as to one passing reference asserting
that the two convictions to which Anthony confessed (which
are no longer at issue) “were surely unattributable to any
alleged error in admitting Mr. Block’s testimony.” Ibid. In
other words, the majority’s reasoning with respect to the
contested counts of conviction was based solely on the suf-
ficiency of the evidence that remained after excising ADA
Block’s testimony.
This Court has repeatedly repudiated such an approach.
As a species of harmless-error review generally, review of
constitutional error in a criminal trial does not ask an ap-
pellate court to assess “whether, in a trial that occurred
without the error, a guilty verdict would surely have been
rendered.” Sullivan v. Louisiana, 508 U. S. 275, 279 (1993);
see also Kotteakos v. United States, 328 U. S. 750, 765
(1946) (holding, as a general matter, that the harmless-
error inquiry “cannot be merely whether there was enough
to support the result, apart from the phase affected by the
error”). Instead, Chapman v. California, 386 U. S. 1812 ANTHONY v. LOUISIANA
SOTOMAYOR, J., dissenting
(1967), requires that the government bear the burden of
proving “beyond a reasonable doubt that the error com-
plained of did not contribute to the verdict obtained,” id., at
24, with the appellate court focusing on “the guilty verdict
actually rendered in this trial,” Sullivan, 508 U. S., at 279.
“That must be so, because to hypothesize a guilty verdict
that was never in fact rendered—no matter how inescapa-
ble the findings to support that verdict might be—would vi-
olate the jury-trial guarantee.” Id., at 279–280.
Although the court below correctly recognized that the
Chapman standard governed, see 309 So. 3d, at 922, it
failed to apply the proper standard, as Judge Wicker ex-
plained. First, and most obviously, the court did not assess
“what effect [the error] had upon the guilty verdict in the
case at hand.” Sullivan, 508 U. S., at 279. The court failed
to ask, let alone attempt to answer, the core question: What
effect did ADA Block’s extensive testimony, including his
wide-ranging commentary on and vouching for the State’s
evidence and testimony and his references to extra record
evidence, have on the jury’s deliberations? That inquiry,
the Court has explained time and again, is the core of as-
sessing harmless error. See, e.g., Yates v. Evatt, 500 U. S.
391, 408 (1991) (harmless-error analysis requires determin-
ing whether the error “contributed to the jury’s verdict”);
Arizona v. Fulminante, 499 U. S. 279, 296 (1991) (analyzing
harmless error by asking whether the error “contribute[d]
to [the defendant’s] conviction”); Harrington v. California,
395 U. S. 250, 254 (1969) (harmless-error analysis “must be
based on our own reading of the record and on what seems
to us to have been the probable impact of the [error] on the
minds of an average jury”); Chapman, 386 U. S., at 23–24
(“An error in admitting plainly relevant evidence which
possibly influenced the jury adversely to a litigant cannot
. . . be conceived of as harmless”); Fahy v. Connecticut, 375
U. S. 85, 86–87 (1963) (“We are not concerned here with
Cite as: 598 U. S. ____ (2022) 13
SOTOMAYOR, J., dissenting
whether there was sufficient evidence on which the peti-
tioner could have been convicted without the evidence com-
plained of. The question is whether there is a reasonable
possibility that the evidence complained of might have con-
tributed to the conviction”).
Instead of heeding this precedent, the court below imag-
ined a hypothetical trial where the grand jury prosecutor
did not testify, and concluded that sufficient evidence sup-
ported conviction. That is exactly the inquiry that this
Court’s harmless-error cases forbid.
C
Under the correct standard, ADA Block’s testimony was
clearly not harmless error. By using the weight of his office
to vouch for and validate the State’s evidence, and by opin-
ing on the conclusions to be drawn from that evidence, ADA
Block’s testimony created a legitimating lens through
which the jury was invited to view the entirety of the State’s
case. It is thus impossible to say beyond a reasonable doubt
that his pervasive testimony did not contribute to the jury’s
verdict. Three instances in particular illustrate how fully
his testimony colored the jury’s deliberations.
Consider first Anthony’s human trafficking conviction.
The court below found harmless error as to this conviction
because “the undisputed testimony established that C. W.
attempted to escape from defendant [once in Louisiana].”
309 So. 3d, at 922. Even assuming that is true, however,
the court overlooked that the Louisiana crime of human
trafficking for commercial sexual activity, as it then ex-
isted, had additional elements. Specifically, an individual
had to defraud, force, or coerce the victim into providing
sexual services for value gained. See La. Rev. Stat. Ann.
§14:46.2 (West 2014) (effective Aug. 1, 2014 to July 31,
2016). The trial testimony related to this element was far
from decisive. Lee testified that she and Grisby were not
forced into prostitution, Tr. 335–336 (Dec. 9, 2016), and
14 ANTHONY v. LOUISIANA
SOTOMAYOR, J., dissenting
C. W. acknowledged a history of voluntary prostitution, Tr.
63 (Dec. 11, 2016).
ADA Block’s testimony, however, left no ambiguity on the
matter. He repeatedly stated that the women were “victims
of Willard Anthony . . . on a human trafficking, sex traffick-
ing enterprise.” 12/10 Tr. 156. Indeed, he cited this fact to
explain why Lee and Grisby were not charged for partici-
pating in C. W.’s beating. Ibid. It is impossible to conclude
that these remarks and others by ADA Block did not sway
the jury to convict Anthony of human trafficking.
Consider next Anthony’s conviction for aggravated bat-
tery with a handgun. While Anthony admitted beating
C. W., he denied using his handgun to do so. Tr. 207 (Dec.
11, 2016). Lee, who was there for the beating, could not
recall whether Anthony had his gun out. Tr. 317 (Dec. 9,
2016). ADA Block, however, boldly testified “I know that
Willard Anthony assaulted [C. W.] with a handgun.” 12/10
Tr. 141. Surely, this testimony was not harmless.
Finally, consider Anthony’s convictions for aggravated
rape. The jury instructions included a number of lesser in-
cluded offenses as alternative verdicts. Record 319–322. A
showing of prejudice here thus requires only reasonable
doubt as to whether ADA Block’s testimony contributed to
the jury’s decision to convict Anthony of aggravated rape,
as opposed to a lesser included offense. The court below
overlooked this critical point in its analysis. The omission
is especially concerning given ADA Block’s repeated testi-
mony that a prosecutor would not charge an offense unless
there was enough evidence to convict. In one characteristic
remark, he explained: “[Y]ou have to meet the elements of
the offense in order to charge the person and each and every
element of the offense must be met beyond a reasonable
doubt . . . . [I]f the evidence shows that the elements are
not there . . . then I have a responsibility and an obligation
not to charge someone with a crime.” 12/10 Tr. 103–104.
There is a reasonable possibility that this and other similar
Cite as: 598 U. S. ____ (2022) 15
SOTOMAYOR, J., dissenting
statements influenced the jury’s decision to convict An-
thony of the most aggravated offenses with which he was
charged.
D
Our criminal justice system holds prosecutors to a high
standard. The prosecutor is “the representative not of an
ordinary party to a controversy, but of a sovereignty.” Ber-
ger, 295 U. S., at 88. From that special role, “improper sug-
gestions, insinuations, and, especially, assertions of per-
sonal knowledge are apt to carry much weight against the
accused when they should properly carry none.” Ibid. It is
an inescapable truth that the “power and force of the gov-
ernment tend to impart an implicit stamp of believability to
what the prosecutor says.” Hall v. United States, 419 F. 2d
582, 583–584 (CA5 1969).
These principles demand careful scrutiny of the rare
cases in which a prosecutor takes the stand as a sworn wit-
ness in a jury trial. Because this case presents one of the
most egregious instances of prosecutorial testimony
amounting to prosecutorial misconduct, I respectfully dis-
sent from the Court’s refusal to issue a summary reversal.