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Kirk is a black man while the victims in this case were white females. “The Constitution prohibits racially biased prosecutorial arguments.” Mc Cleskey v.

An invocation of race by a prosecutor, even if subtle and oblique, may be violative of due process or equal protection. 510 (1927)); racial discrimination in the selection of a grand jury (Vasquez v. Although not deeming this error to be structural, we note that provocation of racial animus against a criminal defendant carries some of the characteristics of structural error in that racial bias implicates the defendant's right to a trial before an impartial jury. An example is Monday, a murder and assault case against an African–American defendant.

The relevant question is whether the prosecutor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process. Carson, 151 Idaho 713, 718–19, 264 P.3d 54, 59–60 (2011) (citing Darden v.

Whether a prosecutor's comments during closing argument rise to the level of fundamental error is a question that must be analyzed in the context of the trial as a whole. Severson, 147 Idaho 694, 720, 215 P.3d 414, 440 (2009).

This prosecutor may not have intended to appeal to racial bias, but a prosecutor's mental state, however innocent, does not determine the message received by the jurors or their individual responses to it. 254 (1986)); denial of the right of self-representation at trial (Mc Kaskle v. Galvan, 156 Idaho 379, 386–87, 326 P.3d 1029, 1036–37 (Ct. Betancourt, 151 Idaho 635, 641, 262 P.3d 278, 284 (Ct. We are not convinced, however, that a singular focus on the strength of the State's evidence is always appropriate where the constitutional error is State conduct that focuses the jury on racial factors. Because of these considerations, courts from other jurisdictions have sometimes modified or relaxed the standards for determining whether the error was prejudicial where the prosecution invoked racial considerations.

We agree that the racial reference here was indirect and perhaps innocently made. In answering this inquiry for other types of fundamental error, we have often considered principally the weight of the evidence supporting the defendant's conviction to determine whether the trial outcome would have been the same absent the constitutional error. Parton, 154 Idaho 558, 568–69, 300 P.3d 1046, 1056–57 (2013); State v.

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Upon review of the prosecutor's comments in the case at bar, this Court concludes that the prosecutor's emphasis on Romero–Garcia's status as a non-citizen of the United States could be viewed as a subtle appeal to the jury's racial or ethnic prejudice.

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