In a Massachusetts sexual assault trial, the evidence can be fairly contested the job of the jury can be very difficult, given the emotions of these charges.  Improper arguments by prosecutors can result in a defendant not receiving a fair trial.

“When Mexico sends its people, they’re not sending their best . . . They’re bringing drugs. They’re bringing crime. They’re rapists.” This harmful rhetoric espoused by former President Donald Trump may shock the senses for some, but, at its core, his words brought to light just how widespread prejudice against undocumented immigrants was. Knowing this, the injustice is almost palpable when you consider the prosecutorial missteps in the trial of undocumented immigrant, Claudiano Santana.

In Commonwealth v. Santana, released last month, the Massachusetts Appeals Court ruled against appellant Claudiano Santana, upholding his convictions of three counts of indecent assault and battery on a child under the age of fourteen. The focus of the appeal? Prosecutorial remarks and questions about Santana’s immigration status and ability to speak English.

One might ask what immigration status and English-speaking ability might have to do with charges of indecent assault and battery. Well, nothing. That is something the trial judge and the majority agreed on—the prosecutors remarks and line of questioning had no bearing on Santana’s guilt or innocence. In fact, ostensibly recognizing the potential prejudice of making the jurors aware that Santana is an undocumented immigrant, the trial judge gave the jurors a limiting instruction. They were to only consider whether the prosecutor had proved each element of the crime charged beyond a reasonable doubt; Santana’s “documented or undocumented status in the United States is irrelevant.” But was this enough to eliminate the risk that the jurors would be influenced by the prosecutor’s emphasis that Santana’s presence in the country was “illegal?” The majority of the Massachusetts Appeals Court thought so.

Despite agreeing with Santana that the prosecutor’s remarks and questions were improper, the majority found that any errors were non-prejudicial, giving much credence to the trial judge’s limiting instruction. However, the decision was not a unanimous one. One justice—Justice Rubin—dissented, finding that the risk of prejudice stemming from the prosecutor’s remarks demanded vacation of Santana’s convictions and a new trial.

The crux of Justice Rubin’s dissent seemed to stem from the majority’s decision to consider Santana’s first assignment of error as two distinct issues. Santana’s first assignment of error was the judge “allowing the Commonwealth to question him about his immigration status and ability to speak English.” The majority first addressed the Commonwealth’s question about Santana’s immigration status, finding that the trial judge should have sustained the defense’s objection to the irrelevant question but finding that the error was not prejudicial so as to require a new trial. Next, addressed whether it was error for the judge to allow the prosecutor’s questions and comments about Santana’s command of the English language. Because the prosecutor’s questions and comments about Santana’s English-speaking ability went unobjected to, Santana faced a much higher burden in convincing the Appeals Court that the error demanded a retrial, a burden, a burden he did not meet as the majority found no substantial risk of a miscarriage of justice, this time pointing to two key prosecution witnesses’ inabilities to speak English.

Justice Rubin took a different, more holistic approach in his review of Santana’s first assignment of error, treating the questions about Santana’s ability to speak English as part and parcel to the prosecutor’s attempt to impeach Santana by drawing attention to his status as an undocumented immigrant. That is, the repeated implications that Santana was feigning an inability to speak English cemented in the juror’s minds that Santana’s unlawful presence in the United States makes him untrustworthy. That, according to Justice Rubin, was enough to create a risk of prejudice that demanded that Santana’s sentences be vacated and that he be afforded a new trial. Had the majority treated the assignment of error the same way, perhaps they, like Rubin, would have been able to see that the judge’s limiting instruction was insufficiently “forceful” to cure what was much more than an “isolated remark” made after the defendant’s testimony about threats of deportation. Maybe they, like Rubin, would have seen that the prosecutor’s strategy more likely painted the defendant as a criminal “falsely hiding behind a feigned inability to speak English” that cannot be trusted. It is unlikely, but possible.

In the end, Santana’s convictions stood, and he was not provided with an opportunity for retrial. Was the jury’s decision marred by latent prejudice? We will never know. But maybe we, like the majority, can feel secure in assuming that the juror’s cleared their minds of any prejudice after receiving “forceful” instructions cautioning them that Santana’s immigration status was irrelevant.