At Talib Watson’s drug trial, prosecutors sought to connect Watson to a car containing crack cocaine and heroin by establishing that the owner of the car, Tyra Jackson, was Watson’s girlfriend. Unfortunately for the prosecutor, the witness testimony was ambiguous:
Prosecutor: “Mr. Thomas, you believe that you know Watson’s girlfriend, Tyra Jackson, right?”
Thomas: “I never testified I knew her or not.”
Prosecutor: “You believe that you may have met her once or twice, right?”
Yet in closing arguments, the prosecutor recounted the exchange as: “Do you think you met Tyra Jackson?” “Well, I think I met her once or twice. I think I’ve met Watson’s girlfriend, Tyra Jackson once or twice.”
The majority held that this was not harmless error, as the case was close and credibility was key, the testimony concerned a central issue in the case, and the government could not point to anything mitigating the prejudice beyond the standard jury instructions that closing arguments and lawyers’ questions are not evidence.
Garland dissented. He wrote that reversal of a conviction based on a prosecutor’s closing argument is only warranted “in the most egregious of cases.” Garland reasoned that the prosecutor’s error was not severe, as it was unintentional, concerned only one sentence of testimony, and only “eliminat[ed] … ambiguity” in the witness’s testimony. Moreover, he argued that jury instructions mitigated the prejudice, and the defense had ample opportunity to correct the prosecutor’s error in its closing argument. Finally, the evidence against Watson was weighty enough to support upholding the conviction in light of the above factors. Garland wrote: “We have always relied on the self-corrective nature of the adversary system, combined with instructions from the court, to police all but the most egregious of these kinds of errors.”