Clausell v. Montana

During voir dire and closing, the prosecutor who tried Amuir Sekou Clausell (defendant) made comments about “hiding the ball.” Specifically, during voir dire, the prosecutor talked about using common sense to make decisions crossing a street, then told jurors: “[T]he books, the movies we watch, all hide the ball . . . . That is what you see in the movies. We hide the ball until the last minute when the butler in the back jumps up and screams, I did it. I just want to make sure we can all use our common sense. Can we all agree on that?” The prosecutor revisited the analogy during closing: “Counsel, ladies and gentlemen, you have heard a masterful job by a very eloquent attorney at attempting to hide the ball. . . . Now we agreed we could use our common sense in accordance with the Judge’s instructions.” The prosecutor then drew an analogy between his child’s friend telling him lies and Clausell’s conflicting statements. Clausell petitioned for postconviction relief based on prosecutorial misconduct, asserting that the prosecutor implied that Clausell’s defense attorney, and Clausell himself, were lying. The State countered that Clausell had taken the prosecutor’s statements out of context, and that instead the prosecutor had merely used analogy to illustrate how a decision-maker compares inconsistent statements against the physical evidence to find the truth. The trial court denied Clausell’s petition, and Clausell appealed.